Silk Road 4th Amendment Memo

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA : 14 Cr. 68 (KBF)
- against - : (Electronically Filed)

ROSS ULBRICHT, :

Defendant. :
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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ROSS ULBRICHTS
PRE-TRIAL MOTIONS TO SUPPRESS EVIDENCE, ORDER PRODUCTION OF
DISCOVERY, FOR A BILL OF PARTICULARS, AND TO STRIKE SURPLUSAGE
JOSHUA L. DRATEL
JOSHUA L. DRATEL, P.C.
29 Broadway, Suite 1412
New York, New York 10006
(212) 732-0707
Attorneys for Defendant Ross Ulbricht
Of Counsel
Joshua L. Dratel
Lindsay A. Lewis
Whitney Schlimbach
Case 1:14-cr-00068-KBF Document 48 Filed 08/01/14 Page 1 of 102
TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT
POINT I
THE MATERIALS AND INFORMATION OBTAINED VIA
VARIOUS SEARCHES AND SEIZURES IN THE COURSE
OF THE INVESTIGATION IN THIS CASE SHOULD BE
SUPPRESSED BECAUSE THEY WERE OBTAINED AS A
DIRECT OR INDIRECT RESULT OF UNLAWFUL
SEARCHES AND SEIZURES CONDUCTED IN
VIOLATION OF THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Fundamental Fourth Amendment Concepts and Principles Relevant to This Case. . . . . 13
B. The Importance of General Warrants and Writs of Assistance In the
Formulation of the Fourth Amendment and the Protections It Affords.. . . . . . . . . . . . . . 14
C. The Evolution of Fourth Amendment Jurisprudence from An
Exclusively Property Law-Based Doctrine to One Including a
Persons Reasonable Expectation of Privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
D. The Supreme Courts Recognition That Fourth Amendment Protections
Must Adapt to and Accommodate the Predominance of
Ever-Advancing Digital Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
E. The Searches and Seizures In This Case Failed to
Satisfy the Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. The Governments Location of the Silk Road Servers. . . . . . . . . . . . . . . . . . . . . . 29
a. Discovery of the Means By Which the Government
Located the Servers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
i
b. The Prospect of Parallel Construction
In This Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
c. The Government Was Required to Obtain a
Warrant to Gain Access to the Silk Road Servers. . . . . . . . . . . . . . . . . . . 34
d. The Issuing Magistrate Judges Should Have Inquired
About the Means Through Which the Government
Located the Silk Road Servers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2. The Pen Register and Trap and Trace Orders Were Unlawful
Because They Required a Warrant and Also Failed to Adhere to
Statutory Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3. The Warrants In the Investigation Constituted Impermissible
General Warrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
a. The Facts Relevant to the Warrants At Issue. . . . . . . . . . . . . . . . . . . . . . . 49
b. Digital Communications Are Protected By the Fourth Amendment. . . . . 52
c. The Overriding Importance of the Particularity Requirement. . . . . . . . . 52
POINT II
THE COURT SHOULD COMPEL
THE GOVERNMENT TO PRODUCE
THE REQUESTED DISCOVERY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
POINT III
THE COURT SHOULD COMPEL THE
GOVERNMENT TO PRODUCE THE
REQUESTED BILL OF PARTICULARS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
A. A Bill of Particulars Is Necessary for the Preparation of Mr. Ulbrichts Defense. . . . . . 65
1. The Government Must Particularize Transactions the
Indictment Describes In Undefined or Only General Terms. . . . . . . . . . . . . . . . . 67
2. The Government Must Identify the Contents Of, and
Parties Involved In, the Communications Alleged . . . . . . . . . . . . . . . . . . 70
ii
B. The Requested Particulars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
POINT IV
THE COURT SHOULD STRIKE
IRRELEVANT AND PREJUDICIAL
SURPLUSAGE FROM THE INDICTMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
A. The Applicable Law Regarding Surplusage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
B. All References to Murder-For-Hire Allegations In Count One of the Indictment
Are Irrelevant to the Charged Offenses and Must Be Struck as Unduly
Prejudicial Surplusage, and to Protect Mr. Ulbrichts Right to Due
Process and a Fair Trial Guaranteed by the Fifth and Sixth Amendments.. . . . . . . . . . . 83
1. The Murder-For-Hire Allegations Referenced in Count One are
Irrelevant and Unduly Prejudicial Surplusage Pursuant to
Rule 7(d), Fed.R.Crim.P.; in That They Are Not an Element of
Either One Or Any Other Count. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
2. The Murder-For-Hire Allegations Referenced in Count One Must
Also Be Struck Pursuant to Fed.R.Evid. 403 Because They Lack Any
Probative Value and Are Therefore Unduly Prejudicial to Mr. Ulbricht. . . . . . . 85

3. References To The Murder-For-Hire Allegations Must Be
Struck from the Indictment to Protect Mr. Ulbrichts Fifth
and Sixth Amendment Rights to Due Process and a Fair Trial. . . . . . . . . . . . . . . 85
C. Reference In Count Three of the Indictment to Password Stealers,
Keyloggers, and Remote Access Tools as Malicious Software
Designed for Computer Hacking,Are Extraneous and Must Be
Struck as Unduly Prejudicial Surplusage, and to Protect Mr. Ulbrichts
Right to Due Process and a Fair Trial Guaranteed by the Fifth and
Sixth Amendments to the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
D. Broadening Phrases, Such as Others Known and Unknown,
Among Others, and Elsewhere, must Be Stricken Because
They Impermissibly Expand the Charges Against Mr. Ulbricht. . . . . . . . . . . . . . . . . . . . 87
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
iii
TABLE OF AUTHORITIES
CASES
Aguilar v. Texas, 378 U.S. 108 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37
Alliance to End Repression v. City of Chicago, 627 F.Supp. 1044 (N.D. Ill. 1985). . . . . . . . 20, 60

American Broadcasting Cos. v. Aereo, ___ U.S. ___, 134 S. Ct. 2498 (2014). . . . . . . . . . . . . . . 26
American Civil Liberties Union, et al. v. Clapper, 13 Civ. 03994 (WHP) (S.D.N.Y.). . . . . . . . . 32
Amnesty International USA, et al. v. Clapper, 08 Civ. 06259 (JGK) (S.D.N.Y.). . . . . . . . . . . . . 32
Andersen v. Maryland, 427 U.S. 463 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Boyd v. United States, 116 U.S. 616 (1886). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 26, 60
Brady v. Maryland, 373 U.S. 83 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
Brigham City v. Stuart, 547 U.S. 398 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Chimel v. California, 395 U.S. 752 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
City of Ontario v. Quon, 560 U.S. 746 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Dow Chemical Co. v. U.S., 476 U.S. 227 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Dunaway v. New York, 442 U.S. 200 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Ex Parte Jackson, 96 U.S. 727 (1877). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Gawne v. United States, 409 F.3d 1399 (9th Cir. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Goldman v. United States, 316 U.S. 125 (1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21
Herring v. United States, 555 U.S. 135 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Horton v. California, 496 U.S. 128 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Illinois v. Gates, 462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37
iv
In the Matter of Applications for Search Warrants for Information Associated With
Target Email Accounts/Skype Accounts, not reported in F. Supp.2d,
2013 WL 4647554 (D. Kansas August 27, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 57-58
In the Matter of the Search of Information Associated with [Redacted]
@mac.comthat is Stored at Premises Controlled by Apple, Inc.,
not reported in F. Supp.2d, available at 2014 WL 1377793 (D.D.C. April 7, 2014).. 32, 57
In the Matter of A Warrant for all Content and Other Information
Associated With the Email Account xxxxx@Gmail.com
Maintained at Premises Controlled By Google, Inc., 14 Mag. 309,
2014 WL 3583529 (S.D.N.Y. July 18, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 58
In the Matter of a Warrant to Search a Certain Email Account Controlled and
Maintained by Microsoft Corporation , 13 MJ 02814 (S.D.N.Y.). . . . . . . . . . . . . . . . . . 35
In re Application, 396 F. Supp.2d 747 (S.D. Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
In re Application, 2006 WL 1876847 (N.D.Ind. July 5, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 44
In re Application of U.S. for Order, 497 F.Supp.2d 301 (D.Puerto Rico 2007). . . . . . . . . . . . . 43
In re Authorizing the Use of a Pen Register, 384 F. Supp. 2d 562
on reconsideration sub nom. In re Application of the U.S. for an Order
(1) Authorizing the Use of a Pen Register & a Trap & Trace Device,
396 F. Supp. 2d 294 (E.D.N.Y. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
In re Applications of U.S. for Orders Authorizing Disclosure of Cell Cite Info.,
05-403, 2005 WL 3658531 (D.D.C. Oct. 26, 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
In re Application of the United States of America for an Order for Disclosure of
Telecommunications Records and Authorizing the Use of a Pen Register and
Trap and Trace, 405 F.Supp.2d 435 (S.D.N.Y.2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

In re U.S. for an Order: (1) Authorizing Installation & Use of Pen Register &
Trap & Trace Device; (2) Authorizing Release of Subscriber & Other Info.;
(3) Authorizing Disclosure of Location-Based Servs.No. 07-128,
2007 WL 3342243 (S.D. Tex. Nov. 7, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
In re U.S. For an Order Authorizing the Disclosure of Prospective Cell Site Info.,
412 F. Supp. 2d 947 (E.D. Wis. 2006) aff'd, 06-MISC-004,
2006 WL 2871743 (E.D. Wis. Oct. 6, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44-45
v
In re U.S for an Order Authorizing the Use of a Pen Register and
Trap on [xxx] Internet Service Account/User Name [xxxxxxx@xxx.com],
396 F. Supp. 2d 45 (D. Mass 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Johnson v. United States, 333 U.S. 10 (1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19
Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Kyllo v. United States, 533 U.S. 27 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18, 27-28
Lopez v. United States, 373 U.S. 427 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Marcus v. Search Warrants of Property at 104 East Tenth St.,
Kansas City, Mo., 367 U.S. 717 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Marron v. United States, 275 U.S. 192 (1927). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Michigan v. Summers, 452 U.S. 692 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Milentz v. United States, 446 F.2d 111 (10 Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . 81-82
th
Nader v. General Motors Corp., 25 N.Y.2d 560 (N.Y. 1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Olmstead v. United States, 277 U.S. 438 (1928). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19
Osborn v. United States, 385 U.S. 323 (1966).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Payton v. New York, 445 U.S. 573 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
People v. Weaver, 12 N.Y.3d 433 (N.Y. Ct. App. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Rakas v. Illinois, 439 U.S. 128, 143 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Riley v. California, Riley v. California, ___ U.S. ___,
134 S. Ct. 2473 (2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13-15, 18, 22-27, 42, 45-49
Silverman v. United States, 365 U.S. 404 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Smith v. Maryland, 442 U.S. 735 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 39, 40, 42, 46-47
vi
Spinelli v. United States, 393 U.S. 410 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37
Stanford v. Texas, 379 U.S. 476 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Steagald v. United States, 451 U.S. 204 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Archer, 455 F.2d 193 (10 Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
th
United States v. Bagaric, 706 F.2d 42 (2d Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
United States v. Bin Laden (El-Hage), 92 F. Supp.2d 225 (S.D.N.Y. 2000).. . . . . . . . . . . . . 67-70
United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 69
United States v. Burgess, 576 F.3d 1078 (10th Cir.2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56
United States v. Busic, 592 F.2d 13 (2d Cir.1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
United States v. Chadwick, 433 U.S. 1 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir.2010). . . . . . . . . . 55
United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . 65, 70-71
United States v. Davis, ----- F.3d -----, 2014 WL 2599917 (11 Cir. 2014). . . . . . 3, 17, 42, 45-47
th
United States v. Forrester, 512 F.3d 500 (9 Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 41-42, 52
th
United States v. Galpin, 720 F.3d 436 (2d Cir.2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 52-56
United States v. Ganias, ----- F.3d -----,
2014 WL 2722618 (2d Cir. June 17, 2014). . . . . . . . . . . . . . . . . . . . . . . . 16-17, 28, 53-54
United States v. Garcia, 474 F.3d 994 (7 Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
th
United States v. George, 975 F.2d 72 (2d Cir.1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
United States v. Greene, 497 F.2d 1068 (7 Cir. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 86
th
United States v. Hill, 459 F.3d 966 (9 Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
th
United States v. Jacobsen, 466 U.S. 109 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
vii
United States v. Jones, ___ U.S. ___, 132 S. Ct. 945 (2012). . . . 17-19, 22, 24, 27, 42, 45-48, 59
United States v. Karo, 468 U.S. 705 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Kassir, S2 04 Cr. 356 (JFK),
2009 WL 995139 (S.D.N.Y. Apr. 9, 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 84, 88
United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
United States v. Knotts, 460 U.S. 276 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-21
United States v. Leary, 846 F.2d 592 (10th Cir.1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-55
United States v. Malochowski, 604 F.Supp.2d 512 (N.D.N.Y. 2009). . . . . . . . . . . . . . . . . . . . . 81
United States v. Mannino, 635 F.2d 110 (2d Cir.1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
United States v. Maturo, 982 F.2d 57 (2d Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
United States v. Metter, 860 F. Supp.2d 205 (E.D.N.Y. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Miller, 425 U.S. 435 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 46
United States v. Mostafa, 965 F.Supp.2d 451 (S.D.N.Y. 2013). . . . . . . . . . . 68, 70, 82, 84, 88-89
United States v. Mulder, 273 F.3d 91 (2d Cir.2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81-83
United States v. Nachamie, 91 F. Supp.2d 565 (S.D.N.Y. 2000). . . . . . . . . . . . . . . . . . . . . . . . 65
United States v. New York Tel. Co., 434 U.S. 159 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40
United States v. Ochs, 595 F.2d 1247 (2d Cir.1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
United States v. Otero, 563 F.3d 1127 (10 Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
th
United States v. PaterninaVergara, 749 F.2d 993 (2d Cir.1984). . . . . . . . . . . . . . . . . . . . . . . 33
United States v. Payton, 573 F.3d 859 (9th Cir.2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
United States v. Pope, 189 F.Supp. 12 (S.D.N.Y. 1960). . . . . . . . . . . . . . . . . . . . . . . . . . 82, 88-89
United States v. Robinson, 414 U.S. 218 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 23
viii
United States v. Roche, 614 F.2d 6 (1st Cir.1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
United States v. Scarpa, 913 F.2d 993 (2d Cir.1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81-82
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Warshak, 631 F.3d 266 (6 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
th
United States v. Wurie, ___ U.S. ___, 134 S. Ct. 2473 (2014). . . . . . . . . . . . . . . . . . . . . 13, 22, 46
Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Voss v. Bergsgaard, 774 F.2d 402 (10th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Warden v. Hayden, 387 U.S. 294 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Whalen v. Roe, 429 U.S. 589 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Williams v. New York, 337 U.S. 241 (1949). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Wong Sun v. United States, 371 U.S. 471 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 29
Wyoming v. Houghton, 526 U.S. 295 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
STATUTES
U.S. Const. Amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59-60
U.S. Const. Amend. IV. . . . 1-4, 12-19, 21-23, 25-29, 33, 39, 42, 46-47, 50-52, 54-56, 58, 60-61
U.S. Const. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 81, 83, 85-87
U.S. Const. Amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 81, 83, 85-87
18 U.S.C. 956.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18 U.S.C. 1030.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 81
18 U.S.C. 1958.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18 U.S.C. 2703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44
18 U.S.C. 2703(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36
ix
18 U.S.C. 2703(c)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
18 U.S.C. 2703(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 47
18 U.S.C. 3122.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44
18 U.S.C. 3123.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
18 U.S.C. 3127. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
18 U.S.C. 3127(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
18 U.S.C. 3127(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
18 U.S.C. 3500.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70-71
21 U.S.C. 846.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
47 U.S.C. 1002(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Rule 401, Fed.R.Evid.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Rule 403, Fed.R.Evid.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 87
Rule 7(d), Fed.R.Crim.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80-83, 85
Rule 16, Fed.R.Crim.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Local Criminal Rule 16.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
OTHER
3 W. LaFave, Search and Seizure 5.2(b) (5th ed. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 Works of John Adams (C. Adams ed. 1856). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Smith, Pew Research Center, Smartphone Ownership,
2013 Update (June 5, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Andrew E. Taslitz, Reconstructing the Fourth Amendment:
A History of Search and Seizure, 17891868 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 21
x
Christopher Slobogin, Government Data Mining and
the Fourth Amendment, 75 U. CHI. L. REV. 317 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . 33
Daniel J. Solove, Digital Dossiers and the Dissipation of
Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (July 2002).. . . . . . . . . . . . . . . . . . 21
Entick v. Carrington, 95 Eng. Rep. 807 (C.P.1765). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17
Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev. 531 (2005). . . . 53-54
Steven Schulhofer, More Essential Than Ever:
The Fourth Amendment In the Twenty-First Century (2012). . . . . . . . . . . . . . . . . . . . . 16
Thomas Y. Davies, Recovering the Original Fourth Amendment,
98 Mich. L. Rev. 547 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Wilkes v. Wood, 19 How. St. Tr. 1153 (1763). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
William J. Cuddihy, The Fourth Amendment:
Origins and Original Meaning: 6021791 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
xi
Introduction
This Memorandum of Law is submitted on behalf of defendant Ross Ulbricht, in support
of his motion(s) to suppress certain evidence, to strike surplusage from the Indictment, and for
discovery, a Bill of Particulars, and exculpatory material pursuant to Brady v. Maryland, 373
U.S. 83 (1963) and its progeny.
As discussed below, during the course of its investigation in this case, the government
conducted a series of 14 searches and seizures of various physical devices containing
electronically stored information (ESI), and of ESI itself from Internet providers and other
sources. Some of the ESI was obtained via search warrant, but other ESI was obtained via court
order, and still other ESI was obtained without benefit of any warrant at all.
Pursuant to the fruit of the poisonous tree doctrine, see Wong Sun v. United States, 371
U.S. 471 (1963), the admissibility of any of that material obtained at the various junctures of the
investigation is dependent not only on the validity of the search and seizure through which a
particular item of ESI or other evidence was acquired, but also on the validity of the searches and
seizures that preceded such acquisition, and upon which any subsequent search and seizure were
based.
Here, at the origin of the investigation, and again at multiple points along its path, the
searches and seizures were unlawful in violation of the Fourth Amendment to the U.S.
Constitution, and/or statutes regulating the acquisition of ESI. As set forth below, certain of the
serial searches repeated prior defects; others suffered from separate, independent flaws.
As a result, the ESI and other material seized and searched has been contaminated at its
source, and at several later points along the way, rendering the direct and indirect product of
1
those searches and seizures in essence, the entire product of the investigation itself
inadmissible. Thus, the Fourth Amendment and relevant statutes require suppression of the fruits
of the searches and seizures, and any evidence or other information derived therefrom.
All of the searches and seizures are predicated upon the governments infiltration of the
alleged Silk Road Servers. Each of the applications for warrants begin the tale of the
investigation with the statement that [e]arlier this year [2013], the FBI located the server hosting
the Silk Road website in a foreign country. See, e.g.., Affidavit in Support of a Search Warrant,
Eastern District of Pennsylvania, September 9, 2013, at 12 (a copy of which is provided with
this motion as part of Exhibit 1). See also post, at 5-11.
However, that event location of the Silk Road Servers is shrouded in mystery, as the
means and manner in which that discovery was accomplished has not been disclosed indeed, it
was not disclosed in any of the applications for warrants or other orders to search and seize ESI
and other material in this case.
That presents a threshold issue: whether locating the Silk Road Servers was the result of
legitimate investigative technique(s), or the product of some unlawful intrusion, digital or
otherwise. It also presents the issue whether the magistrate judges who approved the searches
and seizures were remiss in not at least satisfying themselves that the information upon which the
warrant was based was lawfully obtained and/or reliable.
In addition, the subsequent searches, whether pursuant to warrant or court order (issued
on information establishing less than probable cause) each suffer from similar and in some
instances individual defects that render them invalid. For example, the pen register and trap and
trace orders should have required a warrant, not only because of the relevant recent case law that
2
has transformed the application of the Fourth Amendment to digital devices and information, but
also because of the use to which the pen register and trap and trace devices were put, and the
information they gleaned.
In addition, many of the warrants in particular, those directed at Mr. Ulbrichts laptop,
and his gmail and Facebook accounts constitute the general warrants abhorred by the Framers,
and which led directly to the Fourth Amendment. The wholesale collection and study of Mr.
Ulbrichts entire digital history without limitation expressly sought in the warrants and granted
represent the very type of indiscriminate rummaging that caused the American colonists so
much consternation.
Regarding the case law, three recent cases in particular, Riley v. California, ___ U.S. ___,
134 S. Ct. 2473 (2014), United States v. Jones, ___ U.S. ___, 132 S. Ct. 945 (2012), and United
States v. Davis, ---- F.3d ----, 2014 WL 2599917 (11 Cir. 2014), have set a course for the Fourth
th
Amendment in the digital age. The evolving and emerging jurisprudence those cases have
pioneered is consistent with traditional, fundamental Fourth Amendment values, and harmonizes
longstanding legal principles with technological advancement and its impact on the law.
These motions, like much of this case as recognized by the Court in its opinion on the
previous pretrial motions directed at the Indictment, raise novel issues as they relate to the
Internet . . . Slip op. at 1, Dkt. # 42. They are on the cusp of developing law in the digital era,
yet they are capable of resolution by time-honored Fourth Amendment principles applied as
they have been in Riley, Jones, and Davis to contemporary circumstances in a manner that
preserves and vindicates vitally important Fourth Amendment protections in the face of
government surveillance capability and collection of digital material that threatens to eliminate
3
privacy altogether.
This Memo of Law will endeavor to avoid repetition of certain legal principles and facts
as they apply to the various searches and seizures challenged in this motion. As a result, the
structure of the motion to suppress, POINT I, will first provide a review of specific Fourth
Amendment principles that apply generally to all of the issues raised in this motion. Following
that presentation, certain searches and seizures will be grouped to the extent they suffer from
identical or substantially similar constitutional or statutory deficiencies and/or present the same
or substantially language in the warrant or order at issue. In addition, the Statement of Facts
catalogs chronologically the warrants and orders at issue, but certain additional specific facts
regarding the warrants and orders, either collectively or individually, are integrated throughout
POINT I where relevant.
These motions also make several discovery demands enumerated in POINT II (as well as
demands for Brady material), and a demand for a Bill of Particulars in POINT III. In addition,
POINT IV moves to strike certain surplusage from the Indictment.
Accordingly, for all the reasons detailed in this Memorandum of Law, it is respectfully
submitted that the Court should:
(1) suppress all of the material and information obtained through the invalid searches
and seizures, and suppress all fruits therefrom;
(2) order the government to produce the discovery demanded;
(3) order the government to provide a Bill of Particulars as demanded herein;
(4) strike the designated surplusage from the Indictment; and
(5) conduct any evidentiary hearings necessitated by these motions.
4
Statement of the Facts
As noted above, the governments investigation in this case proceeded through a series of
14 searches and seizures of digital storage devices and the digital information stored therein. As
each affidavit submitted in support of each search warrant states, all of the searches and seizures
were premised upon the governments location of the Silk Road Servers, and the governments
subsequent access to the ESI contained therein.
Thus, each affidavit states in identical language:
Earlier this year [2013], the FBI located the server hosting the Silk
Road website in a foreign country. Through a Mutual Legal
Assistance Treaty request, the FBI received an image of the
contents of the Silk Road Web Server on or about July 29, 2013.
See, e.g., Affidavit in Support of a Search Warrant, Eastern District of Pennsylvania, September
9, 2013, at 12 (Exhibit 1); see also Affidavit in Support of a Search Warrant, Eastern District of
Pennsylvania, September 9, 2013 at 10 (Exhibit 2).
1
Following forensic analysis of the Silk Road Servers by an FBI computer forensic
team[,] see, e.g., Affidavit in Support of a Search Warrant, Eastern District of Pennsylvania,
September 9, 2013, at 12-13 (Exhibit 1), the government commenced its applications for
warrants and orders based on the information obtained from those servers.
Those 14 warrants and orders proceeded chronologically as follows:
(1) the government applied September 9, 2013, to the District Court for the Eastern
District of Pennsylvania, for a warrant to search the contents of the server
maintained on behalf of JTAN.com stored in the second position from the top of a
All of the warrants, orders, and supporting materials produced in discovery are
1
provided with this motion as Exhibits.
5
rack at Windstream Communications Conshohocken Data Center, 1100 East
Hector Street, Lee Park, Suite 500, a storage facility in Conshohocken,
Pennsylvania. United States Magistrate Judge David R. Strawbridge issued a
search and seizure warrant September 9, 2013, for the search of the contents of the
server maintained on behalf of JTAN.com in the second position from the top of
the rack (Exhibit 1);
(2) one minute later (4:51 p.m.) that same day, Magistrate Judge Strawbridge, in
response to an application made September 9, 2013, to the District Court for the
Eastern District of Pennsylvania issued a second warrant for the search and
seizure of the contents of another server, maintained by JTAN.com, headquartered
at 1302 Diamond Street, Sellersville, Pennsylvania. The warrant application
noted that while the target server was located in Windstream Communications
Conshohocken Data Center, in Conshohocken, Pennsylvania, JTAN.com was
believed to have administrative access to the target server, had electronically
preserved its contents in response to an FBI inquiry regarding the server,
and could therefore produce a digital copy of the contents of the target server
(Exhibit 2);
(3) the government applied September 16, 2013, to the District Court for the Southern
District of New York for a Order directing Comcast to install a trap and trace
device to identify the IP address of any Internet communications directed at a
Comcast account assigned an Internet Protocol (hereinafter IP) address as of
September 14, 2013, and a pen register to determine the destination IP addresses
6
of any communication originating from that Comcast account, as well as the date,
time, duration and port of transmission of such communications. By Order dated
September 16, 2013, United States Magistrate Judge Henry Pitman Ordered the
installation of the requested trap and trace device and pen register (hereinafter
pen-trap) for a period not to exceed 60 days from the date of the Order
(Exhibit 3);
(4) the government applied September 17, 2013, to the District Court for the Southern
District of New York, for another Order directing Comcast to install a trap and
trace device to identify the IP address of any Internet communications directed at
the Comcast account assigned an IP address as of September 15, 2013, and a pen
register to determine the destination IP addresses of any communication
originating from that Comcast account, as well as the date, time, duration and port
of transmission of such communications. By Order dated September 17, 2013,
Magistrate Judge Pitman Ordered the installation of the pen-trap for a period not
to exceed 60 days from the date of the Order (Exhibit 4);
(5) the government applied, September 19, 2013, to the District Court for the
Southern District of New York for an Order authorizing the FBI to use a pen
register and trap and trace device to identify the source and destination IP
addresses, as well as dates, times, durations, port of transmissions, and also any
Transmission Control Protocol (hereinafter TCP) collection data, associated
with any electronic communications sent to or from the wireless router maintained
at 235 Monterey Boulevard, San Francisco, California, 94131, assigned an IP
7
address, as of the date of the application. By Order dated September 19, 2013,
Magistrate Judge Pitman authorized the requested pen-trap for a period not to
exceed 60 days from the date of the Order (Exhibit 5);
(6) that same day, September 19, 2013, the government also applied to the District
Court for the Southern District of New York for a warrant to search a computer
server assigned two different IP addresses, maintained at a premises controlled by
Voxility LLC, headquartered at 580 California Street, 12 Floor, Suite #1243, San
th
Francisco, California, 94104. Magistrate Judge Pitman issued a warrant for the
search September 19, 2013 (Exhibit 6);
(7) the following day, September 20, 2013, the government applied to the District
Court for the Southern District of New York for an Order authorizing the FBI to
use a pen register and trap and trace device to identify the source and destination
IP addresses, as well as dates, times, durations, port of transmissions, any TCP
collection data, and any other dialing, routing, addressing and signaling
information associated with any electronic communications sent to or from the
computer devices associated with four different MAC addresses. Magistrate
Judge Pitman authorized the requested pen-trap by Order dated September 20,
2013 (Exhibit 7);
(8) also on September 20, 2013, the government applied for an Order authorizing the
FBI to use a pen register and trap and trace device to identify the source and
destination IP addresses, as well as dates, times, durations, port of transmissions,
any TCP collection data, as well as any MAC addresses, or other dialing, routing,
8
addressing and signaling information associated with any electronic
communications sent to or from the wireless router maintained at 235 Monterey
Boulevard, San Francisco, California, 94131, assigned an IP address, as of the
date of the application. By Order dated September 20, 2013, United States
Magistrate Judge Debra Freeman authorized the requested pen-trap for a period
not to exceed 60 days from the date of the Order. The application and subsequent
Order were almost identical to the application and Order issued by Magistrate
Judge Pitman a day prior, but were broader in scope in terms of what the
application and Order permitted the FBI to identify by means of the pen-trap
(Exhibit 8);
(9) the government applied October 1, 2013, to the District Court for the Southern
District of Pennsylvania for a warrant to search Windstream Communications
Conshohocken Data Center, 1100 East Hector Street, Lee Park, Suite 500, a
storage facility in Conshohocken, Pennsylvania, and seize three servers, assigned
three different IP addresses, and located therein at server rack R2-16" with the
customer ID ggb and assigned host number 418, server rack R2-15" with
customer ID alsa, and assigned host number 421, and rack R2-15" with
customer ID beggy and assigned host number 420, respectively. The contents
of one of the target servers was also the target of a previous September 9, 2013,
search warrant and application (Exhibit 2; see 2 above). United States
Magistrate Elizabeth T. Hay issued a warrant October 1, 2013, authorizing the
FBI to seize and remove the servers in the above-described locations (Exhibit 9);
9
(10) also on October 1, 2013, the government applied to the District Court for the
Southern District of New York for a warrant to search the contents of a computer
server assigned two different IP addresses, maintained at a premises controlled by
Voxility LLC, headquartered at 580 California Street, 12 Floor, Suite #1243, San
th
Francisco, California, 94104. The contents of those servers were also the target of
a previous September 19, 2013, search warrant and application (Exhibit 6; see 6
above). The government stated in its application that the purpose of the October
1, 2013, search warrant application was to obtain a more current image of the
TARGET server and, thereby, to obtain more current information concerning the
balances and contents of the Silk Road Bitcoin Wallets contained therein.
October 1, 2013, Application, at 9, 21. United States Magistrate Judge James L.
Cott issued a warrant for the search October 1, 2013 (Exhibit 10);
(11) in addition, the government applied October 1, 2013, to the District Court for the
Northern District of California for a warrant for a silver Samsung laptop
computer, containing a network adapter with a MAC address, allegedly known to
be used by Ross William Ulbricht, and any peripheral devices, storage media, or
data security devices attached to or contained in the computer. That same day,
United States Magistrate Judge Nathanael Cousins signed the warrant for the
search of the Samsung laptop (Exhibit 11);
(12) the government also applied October 1, 2013, to the the District Court for the
Northern District of California for a warrant for the search of Mr. Ulbrichts
residence located at 235 Monterey Avenue, San Francisco, California, 94131, and
10
for the seizure of items constituting evidence, contraband, fruits, or
instrumentalities of violations of 21 U.S.C. 846, 18 U.S.C. 1030, 18 U.S.C.
956, and 18 U.S.C. 1958. That same day, Magistrate Judge Cousins signed the
warrant for the search of 235 Monterey Avenue, and seizure of the above-
described items (Exhibit 12);
(13) the government applied October 8, 2013, to the United States District Court for
the Southern District of New York for a warrant for all information associated
with the Facebook account for username rossulbricht. That same day, United
States Magistrate Judge Gabriel W. Gorenstein signed the warrant for the search
of the above-described target account, including the name Ross Ulbricht,
(Exhibit 13); and,
(14) also that same day, October 8, 2013, the government applied to the United States
District Court for the Southern District of New York for a warrant to search all
content associated with the e-mail account rossulbricht@gmail.com. That same
day, Magistrate Judge Gorenstein signed the warrant for the search of the above-
described target account (Exhibit 14).
11
ARGUMENT
POINT I
THE MATERIALS AND INFORMATION OBTAINED VIA
VARIOUS SEARCHES AND SEIZURES IN THE COURSE
OF THE INVESTIGATION IN THIS CASE SHOULD BE
SUPPRESSED BECAUSE THEY WERE OBTAINED AS A
DIRECT OR INDIRECT RESULT OF UNLAWFUL
SEARCHES AND SEIZURES CONDUCTED IN
VIOLATION OF THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION
As detailed below, a vast trove of material and information, including ESI, should be
suppressed because the government obtained it as a result of unlawful searches and seizures
either directly because the specific warrant or order authorizing the search and/or seizure was
unlawful, or because the search and seizure constituted the fruit of the poisonous tree of a
previously conducted invalid search and/or seizure that violated the Fourth Amendment to the
U.S. Constitution, as well as certain applicable statutes.
As noted ante, the warrants and orders contain generally similar language, and build on
each other in sequential, chronological fashion. As a result, many of the constitutional and/or
statutory defects in a particular warrant or order apply to many of the other warrants and orders.
Accordingly, in order to eliminate unnecessary repetition and organize the issues efficiently, the
ensuing analysis is presented as follows: Part A will review particular and fundamental Fourth
Amendment principles that apply across the board in this motion; Part B will discuss an
important historical underpinning of the Fourth Amendment, and which has particular relevance
to this motion; Part C will trace the evolution of Fourth Amendment jurisprudence from a
doctrine based on property law and the concept of trespass to one that incorporated a persons
reasonable expectation of privacy; Part D will review recent case law that demonstrates the
12
courts recognition that technological progress, and the advent of ESI as a primary means of
information storage and retrieval, and digital devices as a predominant means of communication
(not only with other individuals, but with any and all global resources, whether political,
personal, commercial, academic, medical, or recreational), requires Fourth Amendment doctrine
to adjust, and how courts have adapted traditional constitutional principles to accommodate that
technological change; and Part E will address the specific Fourth Amendment and/or statutory
deficiencies in the warrants and orders used to obtain material and information in this
investigation.
A. Fundamental Fourth Amendment Concepts and Principles Relevant to This Case
As the Supreme Court has instructed repeatedly, and most recently in Riley v. California,
___ U.S. ___, 134 S. Ct. 2473 (2014), [a]s the text makes clear, the ultimate touchstone of the
2
Fourth Amendment is reasonableness. Id., at 2482, quoting Brigham City v. Stuart, 547 U.S.
398, 403 (2006) (other internal quotation marks omitted). In turn, reasonableness generally
requires the obtaining of a judicial warrant. Id., quoting Vernonia School Dist. 47J v. Acton,
515 U.S. 646, 653 (1995).
As the Court explained in Riley, [s]uch a warrant ensures that the inferences to support
a search are drawn by a neutral and detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out crime. Id., quoting Johnson v.
United States, 333 U.S. 10, 14 (1948). Thus, [i]n the absence of a warrant, a search is
reasonable only if it falls within a specific exception to the warrant requirement. Id., citing
Riley was paired with United States v. Wurie (same citation), and decided together with
2
that case. The opinion will be referred to herein as Riley even when discussing any facts
relevant to Wurie.
13
Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849, 18561857 (2011).
3
Also, the execution of a warrant is as critical to Fourth Amendment compliance as the
underlying basis for it, or subsequent review thereof: the manner in which the government
executes [a] warrant must comport with the Fourth Amendments reasonableness standard.
United States v. Metter, 860 F. Supp.2d 205, 212 (E.D.N.Y. 2012) (citation omitted); accord
United States v. Hill, 459 F.3d 966, 973 (9 Cir. 2006).
th
As Justice Breyer observed in Whalen v. Roe, 429 U.S. 589, 97 S.
Ct. 869 (1977),the example of the Fourth Amendment shows the
Constitution puts limits not only on the type of information the
State may gather, but also on the means it may use to gather it. The
central storage and easy accessibility of computerized data vastly
increase the potential for abuse of that information, and I am not
prepared to say that future developments will not demonstrate the
necessity of some curb on such technology.
Id., at 607.
In addition, a Fourth Amendment violation is fully accomplished at that time of an
unreasonable governmental intrusion, whether or not the evidence seized is sought for use in a
criminal trial. United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990).
B. The Importance of General Warrants and Writs of Assistance In the
Formulation of the Fourth Amendment and the Protections It Affords
The American colonists viscerally negative reaction to the British practices of general
warrants and writs of assistance provided an essential impetus for the Fourth Amendment. As
the Supreme Court has explained for centuries now,
Ironically, as the Court noted in Riley, [i]ndeed, the label exception is something of a
3
misnomer in this context, as warrantless searches incident to arrest occur with far greater
frequency than searches conducted pursuant to a warrant. 134 S. Ct. at 2482, citing 3 W.
LaFave, Search and Seizure 5.2(b), p. 132, and n. 15 (5th ed. 2012).
14
[o]ur cases have recognized that the Fourth Amendment was the
founding generations response to the reviled general warrants
and writs of assistance of the colonial era, which allowed British
officers to rummage through homes in an unrestrained search for
evidence of criminal activity. Opposition to such searches was in
fact one of the driving forces behind the Revolution itself. In 1761,
the patriot James Otis delivered a speech in Boston denouncing the
use of writs of assistance. A young John Adams was there, and he
would later write that [e]very man of a crowded audience
appeared to me to go away, as I did, ready to take arms against
writs of assistance. 10 Works of John Adams 247248 (C.
Adams ed. 1856). According to Adams, Otiss speech was the
first scene of the first act of opposition to the arbitrary claims of
Great Britain. Then and there the child Independence was born.
Id., at 248 (quoted in Boyd v. United States, 116 U.S. 616, 625 []
(1886)).
Riley, 134 S. Ct. at 2494.
As the Court elaborated in Steagald v. United States, 451 U.S. 204, 220 (1981),
[t]he general warrant specified only an offense typically seditious
libel and left to the discretion of the executing officials the
decision as to which persons should be arrested and which places
should be searched. Similarly, the writs of assistance used in the
Colonies noted only the object of the search any uncustomed
goods and thus left customs officials completely free to search
any place where they believed such goods might be. The central
objectionable feature of both warrants was that they provided no
judicial check on the determination of the executing officials that
the evidence available justified an intrusion into any particular
home.
Id., at 220.
4
See also William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning:
4
6021791, at 538 (2009) ([a] revulsion to general warrants ensued in the colonies that was
among the prime causes of the specific warrant clause of the Fourth Amendment as nothing did
more to alienate Americans from those warrants); Tracey Maclin & Julia Mirabella, Framing
the Fourth, 109 Mich. L. Rev. 1049, 1052 (2011), available at
http://www.michiganlawreview.org/assets/pdfs/109/6/maclin___mirabella.pdf ([t]he general
warrant was the preponderant motivation behind the [Fourth A]mendment.) (quoting Cuddihy,
15
Just last month, the Second Circuit, in United States v. Ganias, ---- F.3d ----, 2014 WL
2722618 (2d Cir. June 17, 2014), reiterated that
The chief evil that prompted the framing and adoption of the
Fourth Amendment was the indiscriminate searches and seizures
conducted by the British under the authority of general warrants.
United States v. Galpin, 720 F.3d 436, 445 (2d Cir.2013) (quoting
Payton v. New York, 445 U.S. 573, 583 (1980)) (internal quotation
marks omitted). General warrants were ones not grounded upon a
sworn oath of a specific infraction by a particular individual, and
thus not limited in scope and application. Maryland v. King, ___
U.S. ___, ___, 133 S.Ct. 1958, 1980 (2013). The British Crown
had long used these questionable instruments to enter a political
opponent's home and seize all his books and papers, hoping to find
among them evidence of criminal activity. See Stanford v. Texas,
379 U.S. 476, 48283 (1965). The Framers abhorred this practice,
believing that papers are often the dearest property a man can
have and that permitting the Government to sweep away all
papers whatsoever, without any legal justification, would destroy
all the comforts of society. Entick v. Carrington, 95 Eng. Rep.
807, 81718 (C.P.1765).
2014 WL 2722618, at *7 (footnote omitted). See also Steven Schulhofer, More Essential Than
Ever: The Fourth Amendment In the Twenty-First Century, 24-30 (2012) (describing another
supra, at 771); Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.
Rev. 547 (1999), at 551 (the historical concerns [animating the Fourth Amendment] were
almost exclusively about the need to ban house searches under general warrants.); cf. Maclin &
Mirabella, supra, at 1068 (noting that the Fourth Amendment focused on general warrants
because at the time of the amendments drafting, general warrants were perceived to be the only
type of search posing a real danger to individual liberty, and observing that the underlying
vision of the amendment . . . is checking the discretionary power of law enforcement officials)
(citing Davies, supra, at 741); see also Marcus v. Search Warrants of Property at 104 East
Tenth St., Kansas City, Mo., 367 U.S. 717, 727 (1961)(describing the use of general warrants to
intimidate the press); Herring v. United States, 555 U.S. 135, 155 (2009) (Ginsburg, J.,
dissenting) (observing that expansive, interconnected collections of electronic information in
government hands raise grave concerns for individual liberty and are evocative of the use of
general warrants that so outraged the authors of our Bill of Rights) (internal quotations omitted).
16
British case, The North Briton No. 45, that was pivotal to the Founders perspective).
5
C. The Evolution of Fourth Amendment Jurisprudence from An Exclusively Property
Law-Based Doctrine to One Including a Persons Reasonable Expectation of Privacy
In United States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 949-50 (2012), the Court traces
the evolution of Fourth Amendment jurisprudence, from an exclusively property law-oriented
analysis based on concepts of trespass, embodied in Olmstead v. United States, 277 U.S. 438
(1928), and continued through Silverman v. United States, 365 U.S. 404 (1961), to evaluation of
a persons reasonable expectation of privacy, first enunciated formally in Katz v. United States,
389 U.S. 347 (1967). See also Kyllo v. United States, 533 U.S. 27, 32 (2001) (Court has since
decoupled violation of a persons Fourth Amendment rights from the trespassory violation of his
property), citing Rakas v. Illinois, 439 U.S. 128, 143 (1978). Thus, while Jones was decided
6
technically on a property-oriented basis, the Court added that [s]ituations involving merely the
transmission of electronic signals without trespass would remain subject to Katz analysis. 132
S. Ct. at 953 (cmphasis in original).
In its footnote to that passage, the Court in Ganias pointed out that [t]he Supreme
5
Court has explained that Entick was undoubtedly familiar to every American statesman at the
time the Constitution was adopted, and considered to be the true and ultimate expression of
constitutional law with regard to search and seizure. United States v. Jones, ___ U.S. ___, ___,
132 S. Ct. 945, 949 (2012) (internal quotation marks omitted).
In United States v. Davis, ---- F.3d ----, ----, 2014 WL 2599917 (11 Cir. 2014), the
6 th
Court recounted that there exist two distinct views of the interests protected by the Fourth
Amendment's prohibition of unreasonable searches and seizures. The older of the two theories is
the view that the Fourth Amendment protects the property rights of the people. Id., at *4.
However, as the Court added, in the twentieth century, a second view gradually developed: that
is, that the Fourth Amendment guarantee protects the privacy rights of the people without respect
to whether the alleged search constituted a trespass against property rights. Id., at *4; see
also id., at 4-5 (tracing the evolution of the privacy theory).
17
In addition, the concurring opinions in Jones provided an alternate rationale for the result:
that regardless whether there had been a trespass, the Katz expectation of privacy dictated
application of the Fourth Amendments protection in the context of 28-day long GPS monitoring
of the defendants movements. 132 S. Ct. at 954-57 (Sotomayor, J., concurring); id., at 957-64
(Alito, J., concurring).
7
D. The Supreme Courts Recognition That Fourth Amendment Protections Must Adapt
to and Accommodate the Predominance of Ever-Advancing Digital Technology
Just as the Court in Katz, in response to technological change, moved beyond its unduly
restrictive analysis of telephone privacy in Olmstead, the Court signaled in Jones (and
foreshadowed previously in Kyllo) and demonstrated in Riley that the digital era with respect to
communication, storage, and surveillance capacity augured the arrival of another critical
evolutionary period in Fourth Amendment law and application.
While Rileys factual context involved a search incident to arrest, the more profound
relevance of the Courts multiple opinions (yet unanimous in result), especially in this case, is the
Courts acknowledgment of the need for the Fourth Amendment to recognize and adapt to the
technological advancement accompanying the digitization of communication, storage, and
surveillance.
In many respects Riley moved beyond the pre-existing conceptual framework for the
proper scope of searches incident to arrest, propounded more than 40 years ago in Chimel v.
California, 395 U.S. 752 (1969) and United States v. Robinson, 414 U.S. 218 (1973), just as
Justice Alitos concurrence in Jones was joined by Justices Ginsburg, Breyer, and
7
Kagan. Thus, including Justice Sotomayor, who concurred separately, the number of Justices
who would have grounded the result in an expectation of privacy outnumbered those who relied
on the property law basis and refrained from reaching the Katz-based rationale.
18
Jones heralded a similar advance beyond the opinions in United States v. Knotts, 460 U.S. 276
(1983) and United States v. Karo, 468 U.S. 705 (1984), that addressed the use of tracking
beepers. See Jones, 132 S. Ct. at 951-52.
Thus, while in 1928 Chief Justice Taft could, in Olmstead, write that the Fourth
Amendment could not be extended and expanded to include telephone wires reaching to the
whole world[,] at 465, by 1967 Katz would reject that limitation in favor of an analytical
approach that would harmonize Fourth Amendment values with burgeoning technological mores.
It is now another 35 years from the decision in Smith v. Maryland, 442 U.S. 735 (1979), and 38
years since United States v. Miller, 425 U.S. 435 (1976) was decided, and again during that
interval technology has compelled re-evaluation of just what the Fourth Amendment protects.
8
Many justices often in dissent or concurrence have been prescient with respect to the
necessity for the Fourth Amendment to acknowledge the impact of technology on the concepts of
privacy, surveillance, and government intrusion. For example, in his dissent in Goldman v.
United States, 316 U.S. 125 (1942), Justice Murphy observed that science has brought forth far
more effective devices for the invasion of a persons privacy than the direct and obvious methods
of oppression which were detested by our forbears. 316 U.S. at 139 (Murphy, J., dissenting);
see also Olmstead, 277 U.S. at 474 (Brandeis, J., dissenting) ([w]ays may some day be
developed by which the government, without removing papers from secret drawers, can
Thus has it been since enactment of the Fourth Amendment. It was not until the Pony
8
Express, which began its service in 1860, became popular that the issue of mail privacy
personal papers existing outside the home merited the Supreme Courts attention. Ex Parte
Jackson, 96 U.S. 727,733 (1877) (holding that [t]he constitutional guaranty of the right of the
people to be secure in their papers against unreasonable searches and seizures extends to their
papers, thus closed against inspection, wherever they may be such as in the mail). See also
United States v. Jacobsen, 466 U.S. 109, 113 (1984).
19
reproduce them in court, and by which it will be enabled to expose to a jury the most intimate
occurrences of the house.); Lopez v. United States, 373 U.S. 427, 441 (1963) (Warren, C.J.,
concurring) (warning that the fantastic advances in the field of electronic communications
constitute a great danger to the privacy of the individual, and that indiscriminate use of such
devices in law enforcement raises grave constitutional questions under the Fourth and Fifth
Amendments); Dow Chemical Co. v. U.S., 476 U.S. 227, 251 (1986) (Powell, J., concurring in
part and dissenting in part) (observing that privacy rights [c]ould be seriously at risk as
technological advances become generally disseminated and available in our society); United
States v. Garcia, 474 F.3d 994, 998 (7 Cir. 2007) (Posner, J.) ([t]echnological progress poses a
th
threat to privacy by enabling an extent of surveillance that in earlier times would have been
prohibitively expensive); Alliance to End Repression v. City of Chicago, 627 F.Supp. 1044,
1054 (N.D. Ill. 1985) ([i]t seems that there should come a point when, in tenaciously tracking
and piecing together the details of a persons life from multifarious sources, the resulting probe
becomes so intrusive as to amount to an invasion of privacy even if the individual pieces of the
probe are from public sources); Nader v. General Motors Corp., 25 N.Y.2d 560, 572 (N.Y.
1970) (Breitel, J., concurring) ([a]lthough acts performed in public, especially if taken singly
or in small numbers, may not be confidential, at least arguably a right to privacy may
nevertheless be invaded through extensive or exhaustive monitoring and cataloguing of acts
normally disconnected and anonymous).
The future envisioned in those opinions has in many respects been realized. See People v.
Weaver, 12 N.Y.3d 433, 442 (N.Y. Ct. App. 2009) (noting that Knotts reserved the question of
twenty-four hour surveillance of any citizen for another day, and observing that [t]o say that
20
that day has arrived involves no melodrama; 26 years after Knotts, GPS technology, even in its
present state of evolution, quite simply forces the issue).
In that context, the Supreme Court has long recognized the need to apply the Fourth
Amendment in a manner that maintains its purposes despite changes in the technological or other
circumstances in which Fourth Amendment issues are presented.
For instance, in United States v. Chadwick, 433 U.S. 1 (1977), Justice Burger noted that
while the Framers focused on the wrongs of that day, they also intended the Fourth
Amendment to safeguard fundamental values which would far outlast the specific abuses which
gave it birth. Id., at 9. See also Goldman, 139 U.S. at 138 (Murphy, J., dissenting) (Court
assumes a duty to see that this historic provision receives a construction sufficiently liberal and
elastic to make it serve the needs and manners of each succeeding generation); Andrew E.
Taslitz, Reconstructing The Fourth Amendment: A History of Search and Seizure, 17891868 51
(2006) ([t]he Framers history ultimately matters most when revealing the values that originally
animated adoption of the amendment . . . [to] allow us to refocus attention on the critical
question of what a right to be secure should mean).
In light of those principles, the prospect of untrammeled government access to ESI simply
because it is technically in the possession of a third party, a commentator remarks, this state of
affairs poses one of the most significant threats to privacy in the twenty-first century. Daniel J.
Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev.
1083, 1087 (July 2002).
Here, the context includes not only everything in or accessible via Mr. Ulbrichts laptop,
but also the entire contents of his Facebook and Gmail accounts, as well as the entire contents of
21
servers. In both Jones and Riley, the Court presaged a Fourth Amendment jurisprudence
sensitive to the evolving status of digital devices and ESI, and their multiple functionality not
only for users, but also for law enforcement as tools for pervasive automated surveillance.
Thus, in Riley, the Court understood that regardless of the fact that all of the ESI resident
on the defendants cell phone (and that of the defendant in Wurie as well) was in the
possession of (and accessible by) his service provider by agreement, [t]hese cases require us
to decide how the search incident to arrest doctrine applies to modern cell phones, which are now
such a pervasive and insistent part of daily life that the proverbial visitor from Mars might
conclude they were an important feature of human anatomy. 134 S. Ct. at 2485.
Expounding on the impact the difference over time technological advancement has had
on customary behavior, the Court pointed out that
[a] smart phone of the sort taken from Riley was unheard of ten
years ago; a significant majority of American adults now own such
phones. See A. Smith, Pew Research Center, Smartphone
Ownership2013 Update (June 5, 2013). Even less sophisticated
phones like Wurie's, which have already faded in popularity since
Wurie was arrested in 2007, have been around for less than 15
years. Both phones are based on technology nearly inconceivable
just a few decades ago, when Chimel and Robinson were decided.
Id.
Conducting a balancing test assessing, on the one hand, the degree to which [a search]
intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests[,] id., quoting Wyoming v. Houghton, 526 U.S.
295, 300 (1999) frozen in a previous time, the Court realized, would not be consistent with
Fourth Amendment values and protections. See also id., at 2496-97 (Alito, J., concurring in the
judgment) (we should not mechanically apply the rule used in the predigital era to the search of
22
a cell phone. Many cell phones now in use are capable of storing and accessing a quantity of
information, some highly personal, that no person would ever have had on his person in
hard-copy form. This calls for a new balancing of law enforcement and privacy interests).
9
Consequently, while conceding that a mechanical application of Robinson might well
support the warrantless searches at issue here[,] the Court nonetheless concluded that justifying
a cell phone search based on pre-digital analogues would result in a significant diminution of
privacy[,] id., at 2493, and held that . . . officers must generally secure a warrant before
conducting such a search. Id., at 2485.
The reasons for that determination apply to ESI and digital devices en toto, including to
Mr. Ulbrichts laptop at issue. As the Court in Riley explained, [c]ell phones . . place vast
quantities of personal information literally in the hands of individuals. Id. Consequently, [a]
search of the information on a cell phone bears little resemblance to the type of brief physical
search considered in Robinson. Id. See also id., at 2484 ([b]ut while Robinsons categorical
rule strikes the appropriate balance in the context of physical objects, neither of its rationales has
much force with respect to digital content on cell phones).
In Riley, the Court expanded its consideration to include the functionality of digital
devices:
See also Whats Old Is New Again: Retaining Fourth Amendment Protections In
9
Warranted Digital Searches (Pre-Search Instructions and Post-Search Reasonableness)
A Report by the National Association of Criminal Defense Lawyers Fourth Amendment
Advocacy Committee, May 18, 2014 (hereinafter NACDL Report), available at
<http://www.nacdl.org/NewsReleases.aspx?id=33866>, at 3 (in light of todays digital
realities[] . . . Courts are attempting to balance the competing needs for both citizens privacy
and effective law enforcement).
23
[c]ell phones differ in both a quantitative and a qualitative sense
from other objects that might be kept on an arrestees person. The
term cell phone is itself misleading shorthand; many of these
devices are in fact minicomputers that also happen to have the
capacity to be used as a telephone. They could just as easily be
called cameras, video players, rolodexes, calendars, tape recorders,
libraries, diaries, albums, televisions, maps, or newspapers. One of
the most notable distinguishing features of modern cell phones is
their immense storage capacity.
Id., at 2488-89.
Certainly that description applies even more so to laptops, with their enhanced storage
capacity, internet access, and diverse functions, including GPS locating. Moreover (and also
applicable to laptops), in Jones, Justice Alito, concurring, noted that [p]erhaps most significant,
cell phones and other wireless devices now permit wireless carriers to track and record the
location of users . . . 132 S. Ct. at 963 (Alito, J., concurring). See also Riley, 134 S. Ct. at 2490
[[d]ata on a cell phone can also reveal where a person has been. Historic location information is
a standard feature on many smart phones and can reconstruct someone's specific movements
down to the minute, not only around town but also within a particular building. See United
States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring) (GPS
monitoring generates a precise, comprehensive record of a person's public movements that
reflects a wealth of detail about her familial, political, professional, religious, and sexual
associations)].
The aggregation of information available from a trove of ESI available on digital devices
also influenced the Courts decision in Riley:
[t]he storage capacity of cell phones has several interrelated
consequences for privacy. First, a cell phone collects in one place
many distinct types of information an address, a note, a
prescription, a bank statement, a video that reveal much more in
24
combination than any isolated record. Second, a cell phones
capacity allows even just one type of information to convey far
more than previously possible. The sum of an individuals private
life can be reconstructed through a thousand photographs labeled
with dates, locations, and descriptions; the same cannot be said of
a photograph or two of loved ones tucked into a wallet. Third, the
data on a phone can date back to the purchase of the phone, or even
earlier. A person might carry in his pocket a slip of paper
reminding him to call Mr. Jones; he would not carry a record of all
his communications with Mr. Jones for the past several months, as
would routinely be kept on a phone.
Id., at 2489.
10
The Court also disposed of the argument that a digital device such as a cell phone is
merely a container, pointing out that the analogy crumbles entirely when a cell phone is used
to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing
frequency, are designed to do by taking advantage of cloud computing. Cloud computing is the
capacity of Internet-connected devices to display data stored on remote servers rather than on the
device itself. Id., at 2491.
Indeed, the governments attempts to analogize digital devices to traditional analog
physical items were met with derision by the Court, which responded that the governments
claim that a search of all data stored on a cell phone is materially indistinguishable from
searches of these sorts of physical items . . . is like saying a ride on horseback is materially
indistinguishable from a flight to the moon. Both are ways of getting from point A to point B,
but little else justifies lumping them together. Modern cell phones, as a category, implicate
privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a
See also NACDL Report, at 1 ([w]hat is different is the amount of private information
10
that can be improperly searched and the substantially greater intrusion upon privacy and Fourth
Amendment interests that may result).
25
purse. Id., at 2488-89.
In addition, the Court noted that there is an element of pervasiveness that characterizes
cell phones but not physical records[,] id., at 2490, finding it important that [m]odern cell
phones are not just another technological convenience. With all they contain and all they may
reveal, they hold for many Americans the privacies of life. Id., at 2494-95, quoting Boyd, 116
U.S. at 630. Again stressing the need for continually updating Fourth Amendment doctrine to
keep pace with a changing world, the Court stated that [t]he fact that technology now allows an
individual to carry such information in his hand does not make the information any less worthy
of the protection for which the Founders fought. Our answer to the question of what police must
do before searching a cell phone seized incident to an arrest is accordingly simple get a
warrant. Id., at 2495.
Moreover, the need to act now, rather than waiting, to modernize Fourth Amendment
law, was not lost on the Court: [w]e expect that the gulf between physical practicability and
digital capacity will only continue to widen in the future. Id., at 2489. The pace of
technological advancement has accelerated obsolescence with respect to products themselves,
and threatens to do so legally if courts are not responsive. As the Court has recognized, and
acted, in Jones and Riley, the answer is to adapt or become moribund just like any other part of
society confronted by shifting circumstances.
11
For instance, media companies that failed to recognize the decline in print media, and
11
did not quickly enough transition to include an online presence (if not abandoning print
altogether), have not survived the rapid shift in consumer preferences. The examples in all
fields, commercial or otherwise, abound. The law is not materially different in that regard. See,
e.g., American Broadcasting Cos. v. Aereo, 573 U.S. ___, 134 S. Ct. 2498 (2014) (rejecting
notion that Aereo (and any imitators) could violate the spirit and purpose of the copyright act
provided they substitute [] new technologies for old[,] and correcting the imbalance with an
26
In a trajectory that arcs at least as far back as Jackson and the Pony Express, changes in
technology, transportation, and communication have required the courts to navigate a path for the
Fourth Amendment that adheres to its fundamental purpose, and applies its fundamental
protections. In Jones and Riley, the Court responded without ambiguity. It bypassed entirely the
question whether a third party provider could gain access, or enjoyed possession (by the
customers tacit consent), to digital information, and instead proceeded to modernize Fourth
Amendment jurisprudence to account for the new challenges in degree and in kind presented
by a digital universe. In both cases, a unanimous Court required a warrant and recognized
12
important aspects of digital communication and storage that, as detailed below, are
extraordinarily pertinent to the Fourth Amendment issues presented in this case.
In Kyllo, the Court framed the issue as follows: the question [the Court] confront[s]
today is what limits there are upon this power of technology to shrink the realm of guaranteed
privacy. 533 U.S. at 34. The same is true here in multiples. Also, true here as well, the Court
in Kyllo cautioned that the rule we adopt must take account of more sophisticated systems that
expansive statutory interpretation).
These concerns are indeed global. Recently, the United Nations High Commissioner
12
for Human Rights issued a Report, The Right to Privacy In the Digital Age, 30 June 2014
(hereinafter UN Report), available at <http://www.ohchr.org/EN/HRBodies/HRC/Regular
Sessions/Session27/Documents/A.HRC.27.37_en.pdf>, that noted . . . there is universal
recognition of the fundamental importance, and enduring relevance, of the right to privacy and of
the need to ensure that it is safeguarded, in law and in practice[,] id., at 13, citing both Article
12 of the Universal Declaration of Human Rights, which provides that no one shall be subjected
to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon
his honour and reputation[,] id., at 12, and the International Covenant on Civil and Political
Rights, to date ratified by 167 States, that provides in article 17 that no one shall be subjected to
arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to
unlawful attacks on his or her honour and reputation. Id.
27
are already in use or development. Id., at 36 (footnote omitted).
13
Last month, too, the Second Circuit articulated the courts obligation to resolve these
issues in a contemporary context. In Ganias, the Circuit remarked that [a]pplying 18th Century
notions about searches and seizures to modern technology, however, is easier said than done, as
we are asked to measure Government actions taken in the computer age against Fourth
Amendment frameworks crafted long before this technology existed. 2014 WL 2722618, at *6
(footnote omitted). The Court in Ganias also recognized that [b]ecause the degree of privacy
secured to citizens by the Fourth Amendment has been impacted by the advance of technology,
the challenge is to adapt traditional Fourth Amendment concepts to the Government's modern,
more sophisticated investigative tools. Again, as set forth below, this case presents that
challenge in manifold fashion.
E. The Searches and Seizures In This Case Failed to Satisfy the Fourth Amendment
For several, sometimes overlapping, reasons, the searches and seizures in this case failed
to satisfy the strictures of the Fourth Amendment. Those reasons, detailed below, include in
broad terms:
(1) the failure to obtain a warrant to seize and search the information on the Silk Road
Servers;
(2) the failure to obtain a warrant for purposes of implementing pen registers and/or
trap and trace devices that were used to obtain location information regarding Mr.
Ulbricht; and
Even the dissent in Kyllo acknowledged that the [majority] is properly and
13
commendably concerned about the threats to privacy that may flow from advances in the
technology available to the law enforcement profession. 533 U.S. at 51 (Stevens, J., dissenting).
28
(3) the failure to abide by the Fourth Amendments particularity requirement,
which demands that the items to be seized (and subsequently searched) be
specified in the warrant, and that in the execution of the warrant the search and
seizure be confined to those items for which there exists probable cause to seize
and search.
Also, certain of the applications failed to apprise the issuing courts of material facts,
and/or make misleading or false assertions. In addition, the issuing magistrate judges failed with
respect to certain applications to ensure that the information that was used to establish probable
cause was lawfully obtained and/or reliable. Moreover, in certain instances, the searches and
seizures were conducted in a manner that violated the statutes pursuant to which the orders
authorizing them were obtained.
For all these reasons, as well as the doctrine that the fruit of the poisonous tree
contaminates subsequent searches and seizures, see Wong Sun v. United States, 371 U.S. 471
(1963), it is respectfully submitted that the materials and information obtained pursuant to the
searches and seizures conducted in this investigation be suppressed because they violated the
Fourth Amendment.
1. The Governments Location of the Silk Road Servers
As set forth ante, all of the searches and seizures conducted pursuant to warrants and/or
orders were based on the initial ability of the government to locate the Silk Road Servers, obtain
the ESI on them, and perform extensive forensic analysis of that ESI. Thus, all subsequent
searches and seizures are invalid if that initial locating the Silk Road Servers, obtaining their ESI,
and gaining real-time continued access to those servers, was accomplished unlawfully.
29
a. Discovery of the Means By Which the Government Located the Servers
A definitive answer as to whether the government gained access to the Silk Road servers
lawfully or unlawfully is not possible at this stage because the government has not disclosed how
it located the Silk Road Servers. However, it is apparent that the government did not seek or
obtain a warrant to acquire the ESI on those servers, as the subsequent warrant applications note
that the ESI was provided in response to a request pursuant to a Mutual Legal Assistance Treaty
(hereinafter MLAT).
As a result, Mr. Ulbricht seeks discovery of the means and methods employed by the
government to locate the Silk Road Servers, and the contents of the MLAT request(s). Those
discovery demands are set forth post, in POINT II, at 60.
The discovery demanded is essential to determine whether the entire series of warrants
and/or orders are infected by the governments access to the Silk Road Servers, which included
not only their ESI, but also an ability to monitor activity on those servers continuously and in
real-time.
b. The Prospect of Parallel Construction In This Investigation
In that context, the practice of parallel construction is relevant. Parallel construction,
first revealed in a Reuters article approximately a year ago, describes a practice by the National
Security Agency (NSA) and the Drug Enforcement Administrations Special Operations
Division (hereinafter DEA SoD) by which the former provides the latter with information
about non-national security criminal activity collected via NSA electronic surveillance, and the
latter transmits the substance of the information to federal and/or local law enforcement agencies,
sometimes without disclosing the origin of the information, and always with the condition that
30
the NSAs involvement cannot be disclosed to defendants, their counsel, or even courts. See
John Shiffman and Kristina Cooke, U.S. Directs Agents to Cover Up Program Used to
Investigate Americans, Reuters, August 5, 2013, available at
<http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805>
The parallel construction is the post hoc contrived creation of an alternate, sanitized
pathway of information or evidence acquisition designed deliberately to shield the NSAs (and
DEAs SoD) involvement, and the origins and means of the genuine collection of the
information. According to the Reuters article, in certain instances even prosecutors were not
informed of the true source of the information. Id. ([a]lthough these cases rarely involve
national security issues, documents reviewed by Reuters show that law enforcement agents have
been directed to conceal how such investigations truly begin not only from defense lawyers but
also sometimes from prosecutors and judges).
Any such sanitizing of an investigations origins, or the basis for obtaining court
authorization for searches (or anything else) cannot be considered legitimate, or a substitute for
complete and accurate disclosure. See John Shiffman & Kristina Cooke, U.S. Directs Agents to
Cover Up Program Used to Investigate Americans, Reuters, Aug. 5, 2013,
http://reut.rs/15xWJwH (describing parallel construction as just like money laundering you
work it backwards to make it clean).
14
Such non-disclosure does not suggest that it is the prosecutors in this case that are at
14
fault here. In fact, it may well be the case that the NSA or other agencies have deliberately
concealed this information from the prosecutors as it did the public. See, e.g., Exclusive: U.S.
Directs Agents to Cover Up Program Used to Investigate Americans, Reuters, August 5, 2013,
available at http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805.
31
Given the massive breadth of the NSAs dragnet electronic surveillance, this case is a
15
prime candidate for parallel construction, particularly in light of Silk Roads exclusive
operation on the Internet, and its use of both the Tor network and Bitcoin, both designed to
anonymize vendors and purchasers, as well as the intensity of the governments multi-year
investigation aimed at finding the identity of those operating the web site (evident from the
governments description of its investigation). In addition, the governments vague references to
its locating of the Silk Road Servers only add to the possibility of parallel construction. See In
the Matter of the Search of Information Associated with [Redacted] @mac.comthat is Stored at
Premises Controlled by Apple, Inc., not reported in F. Supp.2d, available at 2014 WL 1377793,
at *8 n. 15 (D.D.C. April 7, 2014) (seizure and retention of an entire e-mail account pursuant to a
search warrant creates the problem that the data may be put into a larger database that would be
ripe for abuse. Even if outright abuse does not occur, there is always the risk of troubling uses
such as parallel construction, where illegal or secret criminal investigations are recreated in a
manner that is seemingly consistent with the Constitution without informing the accused or the
court. See Hanni Fakhoury, DEA and NSA Team Up to Share Intelligence, Leading to Secret Use
of Surveillance in Ordinary Investigations, Electronic Frontier Foundation, available at
https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering (last visited
The scope of NSAs electronic surveillance, in terms of both interception of
15
communications, as well as bulk telephony metadata collection, is covered comprehensively in
filings in two American Civil Liberties Union lawsuits, Amnesty International USA, et al. v.
Clapper, 08 Civ. 06259 (JGK) (S.D.N.Y.), Docket #7, and American Civil Liberties Union, et al.
v. Clapper, 13 Civ. 03994 (WHP) (S.D.N.Y.), Docket #26.
32
Mar. 30, 2014)).
16
In addition, disclosures made by former NSA employee Edward Snowden with respect to
collaboration between the U.S. and other governments particularly the United Kingdoms
General Communications Headquarters (hereinafter GCHQ) in conducting surreptitious
warrantless electronic surveillance must be taken into consideration. See, e.g., UN Report, at 4
(noting . . . revelations in 2013 and 2014 that suggested that, together, the National Security
Agency in the United States of America and General Communications Headquarters [GCHQ] in
the United Kingdom of Great Britain and Northern Ireland have developed technologies allowing
access to much global internet traffic, calling records in the United States, individuals address
books and huge volumes of the digital communications content).
That cooperative electronic surveillance could very well constitute a joint venture that
would make the U.S. accountable for the conduct of the foreign government (here, in the context
of assisting in locating the Silk Road Servers), and subject that foreign governments conduct to
Fourth Amendment scrutiny and standards. See, e.g., United States v. PaterninaVergara, 749
F.2d 993, 998 (2d Cir.1984) (when cooperation with foreign law enforcement officials may
As noted by a law professor specializing in Fourth Amendment issues, [t]he NSA
16
program is representative of a number of other domestic law enforcement efforts for instance,
the seventy-plus fusion centers that have been set up to collect and fuse together information
from public and private sources that also involve government accumulation of vast amounts of
data. Christopher Slobogin, Cause to Believe What?: The Importance of Defining A Searchs
Object Or, How the ABA Would Analyze the NSA Metadata Surveillance Program, 66
OKLAHOMA L. REV. 2 (2014), citing THE CONSTITUTION PROJECT, RECOMMENDATIONS
FOR FUSION CENTERS: PRESERVING PRIVACY AND CIVIL LIBERTIES WHILE PROTECTING
AGAINST CRIME AND TERRORISM, 4-7 (2012), available at http://
constitutionproject.org/pdf/fusioncenterreport.pdf. See generally, Christopher Slobogin,
Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 318-322 (2008)
(describing a number of large-scale federal data mining programs).
33
implicate constitutional restrictions, evidence obtained by foreign officials may be excluded);
United States v. Maturo, 982 F.2d 57, 60-61 (2d Cir. 1992) [regarding suppression of evidence,
constitutional requirements may attach in two situations: (1) when the conduct of foreign law
enforcement officials rendered them agents, or virtual agents, of United States law enforcement
officials, see United States v. Busic, 592 F.2d 13, 23 n. 7 (2d Cir.1978); or (2) when the
cooperation between the United States and foreign law enforcement agencies is designed to
evade constitutional requirements applicable to American officials. See United States v. Bagaric,
706 F.2d 42, 69 (2d Cir. 1983)].
The prospect of parallel construction is also present with respect to the Canadian Customs
officials July 10, 2013, interception of a package allegedly from a Silk Road vendor and
addressed to Mr. Ulbricht. While that interception could have been a coincidence, there were a
mere thirteen days between the interception and the FBIs viewing of the first image of the Silk
Road Servers (no date is provided for when the Silk Road servers were first located), and
provided a convenient basis for Department of Homeland Security investigators to make a
controlled delivery of the package and then interview Mr. Ulbricht about it. See Complaint, at
22, 42.
As a result, the government should be compelled to disclose any and all information
about that incident as well, and/or to inquire of U.S. law enforcement and intelligence agencies
with respect to whether any parallel construction has occurred in this investigation.
c. The Government Was Required to Obtain a
Warrant to Gain Access to the Silk Road Servers
According to the warrant applications, the Silk Road Servers the government first gained
34
access to were located overseas. See, e.g., Exhibit 10, at 14. Yet even by the governments
17
own arguments in another case, that did not obviate the requirement of seeking a warrant to
obtain those servers ESI.
In In the Matter of a Warrant to Search a Certain Email Account Controlled and
Maintained by Microsoft Corporation , 13 MJ 02814 (S.D.N.Y.), the government obtained a
warrant for ESI stored by Microsoft. However, Microsoft responded by noting that the ESI
sought in the warrant is stored overseas, thereby placing it outside the territorial reach of the
warrant.
In reply, the government has asserted that the warrant is not extraterritorial because the
statutory provision under which it was obtained, 18 U.S.C. 2703(c), confers jurisdiction over
data stored outside the United States. See id., at Dkt # 60 ([t]he warrant properly requires
Microsoft to disclose data under its control regardless of where Microsoft has chosen to store the
data).
The governments rationale was that in an era in which email and other electronic
communications are used extensively by criminals of all types in the United States and abroad,
from fraudsters to hackers to drug dealers, in furtherance of violations of U.S. law, territorial
limitations should not apply. Id., at Dkt #60. See also Mark Hamblett, Government Rebuts
Microsoft Challenge to Email Subpoena, The New York Law Journal, July 14, 2014, available
Relevant to Mr. Ulbrichts discovery requests, and the validity of the governments
17
acquisition of the content of the Silk Road Servers, and the subsequent series of warrants, is
whether the government knew when it obtained access to the overseas servers that other alleged
Silk Road Servers, which were the subject of subsequent warrant applications, were located in
the United States, but declined to seek warrants for them, instead opting for a warrantless
acquisition via the MLAT process.
35
at <http:www.newyorklawjournal.com/printerfriendly/id+120662768052>.
The government has not provided any reason why it could not have pursued, and why it
was not obligated under its own theory of the scope of 2703(c)s jurisdiction, to pursue the same
avenue a warrant for obtaining the ESI on the Silk Road Server and, once it possessed the
image of the servers, and monitored them in real time in the U.S., to obtain a warrant to perform
its forensic analysis and monitoring of the servers activity.
Accordingly, the warrantless acquisition of the Silk Road Servers ESI, and the forensic
analysis and effective operation of those servers by the government within the U.S. once an
image was obtained, was unlawful. Consequently, any evidence emanating from the locating,
acquisition, analysis and monitoring of, the Silk Road Servers should be suppressed. In the
alternative, the government should be ordered to produce the discovery demanded in POINT II.
d. The Issuing Magistrate Judges Should Have Inquired About the
Means Through Which the Government Located the Silk Road Servers
As noted ante, each of the warrant applications included the reference to locating the Silk
Road Servers overseas. Yet the government did not disclose in those applications the means of
such locating, and there is no evidence that any of the issuing magistrate judges inquired of those
means, or satisfied themselves with respect to the lawfulness and/or reliability of the source for
the entire probable cause determination.
That represents an abdication of the duty of a neutral, detached magistrate occupying
the role of constitutional gatekeeper. As the Supreme Court instructed in Illinois v. Gates, 462
U.S. 213 (1983), discussing the standard set forth in Aguilar v. Texas, 378 U.S. 108 (1964) and
Spinelli v. United States, 393 U.S. 410 (1969),
36
[f]indings of probable cause, and attendant intrusions, should not
be authorized unless there is some assurance that the information
on which they are based has been obtained in a reliable way by an
honest or credible person. As applied to police officers, the rules
focus on the way in which the information was acquired. As
applied to informants, the rules focus both on the honesty or
credibility of the informant and on the reliability of the way in
which the information was acquired. Insofar as it is more
complicated, an evaluation of affidavits based on hearsay involves
a more difficult inquiry. This suggests a need to structure the
inquiry in an effort to insure greater accuracy. The standards
announced in Aguilar, as refined by Spinelli, fulfill that need. The
standards inform the police of what information they have to
provide and magistrates of what information they should demand.
. . . By requiring police to provide certain crucial information to
magistrates and by structuring magistrates probable cause
inquiries, Aguilar and Spinelli assure the magistrate's role as an
independent arbiter of probable cause, insure greater accuracy in
probable cause determinations, and advance the substantive value
identified above.
Id., at 283 (emphasis added).
Here, with respect to the means by which the FBI located the Silk Road Servers, the
issuing magistrate judges failed to fulfill their crucial role in the warrant process.
2. The Pen Register and Trap and Trace Orders Were Unlawful Because They
Required a Warrant and Also Failed to Adhere to Statutory Limitations
The pen register and trap and trace Orders (hereinafter pen-trap), provided as parts of
Exhibits 3 - 5 and 7 - 8, essentially request the following:
this Court has, upon the application of the United States of America,
entered an Order authorizing agents of the Secret Service to direct
COMCAST to install a trap and trace device to identify the source
Internet protocol (IP) address of any Internet communications
directed to, and a pen register to determine the destination IP address
of any Internet communications originating from, the following
Internet user account controlled by COMCAST (the TARGET
ACCOUNT), along with the date, time, duration, and port of
transmission, but not the contents, of such communications (the
Requested Pen-Trap), in connection with a criminal investigation.
37
See Exhibit 3.
18
The pen-trap devices were used on routers, IP addresses, and MAC addresses, and the
19
latter applications also referenced Transmission Control Protocols. See, e.g., Exhibit 7, at 2.
20
According to the applications for the pen-trap Orders,
18
[a] pen register is a device or process which records or decodes
dialing, routing, addressing, or signaling information transmitted
by an instrument or facility from which a wire or electronic
communication is transmitted. 18 U.S.C. 3127 (3). A trap and
trace device is defined as a device or process which captures the
incoming electronic or other impulses which identify the
originating number or other dialing, routing, addressing, and
signaling information reasonably likely to identify the source of a
wire or electronic communication. 18 U.S.C. 3127 (4).
Exhibit 3, 4.
According to the applications for the pen-trap Orders, [e]very device on the Internet is
19
identified by a unique number called and Internet Protocol (IP) address. This number is used to
route information between devices, for example, between two computers. Two computers must
know each others IP addresses to exchange even the smallest amount of information. See
Exhibit 7, at 6. A MAC address is a unique identifier that is hard-coded into a computer that
can be used to physically identify the computer (similar to a vehicle identification number of a
car). See Exhibit 7, at 8.
The pertinent applications explained Transmission Control Protocols as follows:
20
[o]n the Internet, data transferred between devices is not sent as a
continuous stream, but rather the data are split into discreet
packets. Generally, a single communication is sent as a series of
packets. When the packets reach their destination, the receiving
device reassembles them into the complete communication. Each
packet has two parts: a header, which contains routing and
control information, and a payload, which generally contains
user data. The header contains non-content information such as the
packets source and destination IP addresses and the packets size.
The Transmission Control Protocol or TCP is a communications
protocol used to process such data packets associated with popular
Internet applications, such as Internet browser and e-mail
applications.
38
Each of the Orders were for 60 days, although the full range of surveillance under the pen-trap
orders lasted approximately two weeks. The applications also claimed that the pen-trap devices
did not capture content. See, e.g., Exhibit 4, at 2.
While ostensibly a pen-trap reveals only identifying information, in fact these pen-traps
had an ulterior purpose: to track Mr. Ulbrichts internet activity, coupled with his physical
location, in an effort to connect him to access to the administrative section of the Silk Road
Servers at particular times on particular dates. See Exhibit 11, at 41(a)-(g). That purpose
extends well beyond that permissible for a pen-trap, and, because the devices were used absent a
warrant based on probable cause, violates the Fourth Amendment as well as express statutory
provisions.
As noted ante, in Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that a
telephone subscriber does not have an expectation of privacy in the numbers he or she dials
because the subscriber knows full well that the telephone company keeps records of that
information (which the subscriber has at least tacitly knowingly provided to that third party).
However, the pen-traps in this investigation are not your grandfathers pen-trap as was at issue
in Smith.
For example, in Smith, the Court noted in support of its reasoning that a pen register
does not indicate whether calls are actually completed. Id., at 736 n. 1, quoting United States
v. New York Tel. Co., 434 U.S. 159, 161 n. 1 (1977). See also id., at 741 (a law enforcement
official could not even determine from a pen register whether a communication existed). Also,
again as part of its justification, the Court added that [n]either the purport of any communication
Exhibit 7, at 7.
39
between the caller and recipient of the call, their identities, nor whether the call was even
completed is disclosed by pen registers. 442 U.S. at 741, quoting United States v. New York
Tel. Co., 434 U.S. at 167.
Here, the pen-traps were implemented to do exactly what the Supreme Court said,
[g]iven a pen registers limited capabilities . . . 442 U.S. at 742, the device could not do, and
thus insulated them from constituting an invasion of private communications. The pen-traps here
were sought in order to confirm the laptops connection to the Internet at specific times and
dates, their duration, and the laptops physical location when it logged on and off.
Also, in Smith, the Court further based its decision on the fact that pen registers were
routinely used by telephone companies for the purpose of checking billing operations, detecting
fraud, and preventing violations of law. 442 U.S. at 742, quoting New York Tel. Co., at 174-
75. See also id. (also to check for a defective dial, or to check for overbilling) (citation omitted)
(internal quotation marks omitted).
Again, the Internet provides an entirely different technical and privacy environment than
a telephone circuit, particularly one in 1979. As explained by Julian Sanchez (a Research Fellow
at the Cato Institute and contributing editor at Reason magazine),
the Internet functions quite differently from the traditional circuit-
switched telephone network. On the phone network, a binary
distinction between content and metadata works well enough:
The content is what you say to the person on the other end of the
call, and the metadata is the information you send to the phone
company so they can complete the call. But the Internet is more
complicated. On the Open Systems Connections model familiar to
most techies, an Internet communication can be conceptualized as
consisting of many distinct layers, and a single layer may
simultaneously be content relative to the layer below it and
metadata relative to the layer above it.
40
* * *
The crucial point here is that the detailed metadata for a
particular Internet communication, past the IP layer, typically
wouldnt be processed or stored by the ISP in the way that phone
numbers and other call data is stored by the phone company. From
the ISPs perspective, all of that stuff is content.
* * *
Either way, the acquisition of metadata other than IP addresses
from an ISP or off the backbone is pretty clearly dissimilar from
the collection of call data at issue in Smith in every important
respect. It is not information conveyed to the Internet provider for
the purpose of routing the communication; it is routing information
conveyed through the provider just like any other content. Nor is it
information the Internet provider would otherwise normally retain
for routine business purposes. Again, relative to the ISP, its all
just content.
Julian Sanchez, Are Internet Backbone Pen Registers Constitutional? Just Security, September
23, 2013, available at <http://justsecurity.org/1042/internet-backbone-pen-registers-
constitutional/>.
Courts have reached the same conclusion with respect to certain internet information that
is captured by a pen-trap, particularly that employed here. For example, in United States v.
Forrester, 512 F.3d 500 (9 Cir. 2007), the Court postulated that
th
[s]urveillance techniques that enable the government to determine
not only the IP addresses that a person accesses but also the
uniform resource locators (URL) of the pages visited might be
more constitutionally problematic. A URL, unlike an IP address,
identifies the particular document within a website that a person
views and thus reveals much more information about the person's
Internet activity. For instance, a surveillance technique that
captures IP addresses would show only that a person visited the
New York Times website at http://www.nytimes.com, whereas a
technique that captures URLs would also divulge the particular
articles the person viewed. ([I]f the user then enters a search
phrase [in the Google search engine], that search phrase would
41
appear in the URL after the first forward slash. This would reveal
content . . . .).
Id., at 510 n. 6. See also In re U.S. for an Order Authorizing the Use of a Pen Register and Trap
on [xxx] Internet Service Account/User Name [xxxxxxx@xxx.com], 396 F. Supp. 2d 45, 49 (D.
Mass 2005) ([a] user may visit the Google site. . . . [I]f the user then enters a search phrase,
that search phrase would appear in the URL after the first forward slash. This would reveal
content . . . . The substance and meaning of the communication is that the user is conducting a
search for information on a particular topic) (internal quotation marks omitted).
Indeed, even senior government intelligence officials concede that metadata is content.
See, e.g., Spencer Ackerman, NSA Review Panel Casts Doubt On Bulk Data Collection
Claims, The Guardian, January 14, 2014, available at
<http://www.theguardian.com/world/2014/jan/14/nsa-review-panel-senate-phone-data-terrorism>
(quoting former Deputy CIA Director Mike Morrells testimony before the Senate Judiciary
Committee that [t]here is quite a bit of content in metadata). See also Bruce Schneier,
https://www.schneier.com/blog/archives/2013/09/metadata_equals.html (taking the position that
metadata equals surveillance).
In fact, in Smith, Justice Stewart made that very point in his dissent, that phone numbers
dialed constitute content. 442 U.S. at 750-51 (Stewart, J., dissenting). See also Davis, 2014 WL
2599917 (noting that aggregation of information can create content from otherwise non-
substantive information, thereby invading privacy in a manner violative of the Fourth
Amendment). Thus, even if Smith were not functionally eclipsed by Riley, Jones, and United
States v. Davis (discussed in detail post), and therefore ripe for revisiting, it describes a primitive
42
methodology that bears little, if any genuine, resemblance to what the pen register and trap and
trace accomplished in this case.
Moreover, the use of the pen-trap devices to establish Mr. Ulbrichts internet activity in
conjunction with his physical location is the functional equivalent of geo-locating, which could
violate the Communications Assistance for Law Enforcement Act (hereinafter CALEA), which
at 47 U.S.C. 1002(a), in the context of requiring telecommunications carriers to make their
equipment accessible for government electronic surveillance, provides the following caveat:
with regard to information acquired solely pursuant to the authority for pen registers and trap
and trace devices (as defined in 18 U.S.C. 3127), such call-identifying information shall not
include any information that may disclose the physical location of the subscriber (except to the
extent that the location may be determined from the telephone number[.]
Here, the pen-trap Orders were hybrids, procured through a combination of authorities
3127 as well as 18 U.S.C. 2703(d) of the Stored Communications Act (hereinafter SCA)
and were not authorized exclusively pursuant to 3127. However, that resort to the SCA
constitutes mere semantics, and violates the spirit of CALEA, which was designed to foreclose
real-time locating (as opposed to the SCA, which supposedly targets historical stored
information).
Indeed, such hybrids have been disfavored by a number of courts. See, e.g., In re
Application, 396 F. Supp.2d 747 (S.D. Tex. 2005); In re Application of U.S. for Order, 497
F.Supp.2d 301, 302 (D.Puerto Rico 2007) (rejecting application by government for orders under
18 U.S.C. 2703 and 3122, . . . for the installation and use of pen register and trap and trace
devices, Enhanced Caller ID special calling features, and the capture of limited geographic or cell
43
site information, all for a period of sixty days from the date of the order). See also In re
Application, 2006 WL 1876847 (N.D.Ind. July 5, 2006); In re Authorizing the Use of a Pen
Register, 384 F. Supp. 2d 562, 564 on reconsideration sub nom. In re Application of the U.S. for
an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device, 396 F. Supp. 2d
294 (E.D.N.Y. 2005) (initial case holds cell site location information which the government
seeks is information that a pen register or trap and trace device does, by definition, provide, but
it is not information that the government may lawfully obtain absent a showing of probable
cause); In re Applications of U.S. for Orders Authorizing Disclosure of Cell Cite Info., 05-403,
2005 WL 3658531 (D.D.C. Oct. 26, 2005) (stating that Magistrate Judges will not grant
applications for orders authorizing the disclosure of cell site information pursuant to 18 U.S.C.
2703, 18 U.S.C. 3122 and 3123, or both absent new authority and ordering any such
applications to be returned to the attorneys).
Also, courts have been unreceptive to applications for pen-traps used for the purpose of
ascertaining location. See In re U.S. for an Order: (1) Authorizing Installation & Use of Pen
Register & Trap & Trace Device; (2) Authorizing Release of Subscriber & Other Info.; (3)
Authorizing Disclosure of Location-Based Servs.No. 07-128, 2007 WL 3342243 (S.D. Tex. Nov.
7, 2007) (Assistant United States Attorney request[ed] an Order authorizing the [DEA] to
require the [cell phone] Provider to disclose location-based data that will assist law enforcement
in determining the location of the Target Device[,] (emphasis added), prompting Court to
conclude that [t]he information that the Government seeks clearly attempts to identify the exact
location of the Target Device (and presumably the person holding the Target Device), and thus
requires a finding of probable cause); In re U.S. For an Order Authorizing the Disclosure of
44
Prospective Cell Site Info., 412 F. Supp. 2d 947, 958 (E.D. Wis. 2006) aff'd, 06-MISC-004, 2006
WL 2871743 (E.D. Wis. Oct. 6, 2006) (disagreeing with a prior SDNY case, In re Application of
the United States of America for an Order for Disclosure of Telecommunications Records and
Authorizing the Use of a Pen Register and Trap and Trace, 405 F.Supp.2d 435 (S.D.N.Y.2005),
that a pen-trap with some other authority like the SCA could be sufficient to allow for geo-
locating, and stating that "[t]he bottom line is that the array of statutes invoked by the issues in
this case, i.e., the Pen/Trap Statute, the SCA, and CALEA present much more a legislative
collage than a legislative mosaic. If Congress intended to allow prospective cell site information
to be obtained by means of the combined authority of the SCA and the Pen/Trap Statute, such
intent is not at all apparent from the statutes themselves.).
In addition, the applications for the pen-traps in this case did not reveal to the issuing
magistrate judges the true purpose attempting to triangulate Mr. Ulbrichts internet activity in
conjunction with his physical location and administrative interaction on the Silk Road Servers
beyond the rudimentary certification that the information sought was relevant to a criminal
investigation of Mr. Ulbricht. See, e.g., Exhibit 3, at 10.
Ultimately, Jones now combined with Riley renders prior conflicting decisions moot, as
here there is not any functional distinction between the information protected in Jones and Riley
(or Davis) and that the government obtained here through the pen-traps without benefit of a
warrant. The protection afforded cell phones in Riley is only amplified with respect to laptops,
and the geo-locating sought in Davis under the very same authority as used here the order,
rather than warrant, provisions of the SCA is in practical terms indistinguishable from what the
government sought to achieve here with the pen-trap devices.
45
Also, as noted ante, the Courts in Jones and Riley did not consider Smith an obstacle
despite the fact that in both cases a third-party provider had access to the information sought
(including, in Wurie, call logs, see 134 S. Ct. at 2492-93), and the customer/defendant had
voluntarily surrendered the privacy of that information to the provider.
More explicitly, Justice Sotomayor, in concurring in Jones, challenged the continued
vitality of the third-party records doctrine underlying Smith:
[m]ore fundamentally, it may be necessary to reconsider the
premise that an individual has no reasonable expectation of privacy
in information voluntarily disclosed to third parties. E.g., Smith [v.
Maryland], 442 U.S. [735], at 742 [(1979)]; United States v.
Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976).
This approach is ill suited to the digital age, in which people reveal
a great deal of information about themselves to third parties in the
course of carrying out mundane tasks. People disclose the phone
numbers that they dial or text to their cellular providers; the URLs
that they visit and the e-mail addresses with which they correspond
to their Internet service providers; and the books, groceries, and
medications they purchase to online retailers. Perhaps, as Justice
Alito notes, some people may find the tradeoff of privacy for
convenience worthwhile, or come to accept this diminution of
privacy as inevitable, post, at 962, and perhaps not. I for one
doubt that people would accept without complaint the warrantless
disclosure to the Government of a list of every Web site they had
visited in the last week, or month, or year. But whatever the
societal expectations, they can attain constitutionally protected
status only if our Fourth Amendment jurisprudence ceases to treat
secrecy as a prerequisite for privacy. I would not assume that all
information voluntarily disclosed to some member of the public for
a limited purpose is, for that reason alone, disentitled to Fourth
Amendment protection.
Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).
Already, in Davis, the lower courts are taking heed. In Davis, the Eleventh Circuit held
that the government required a warrant to obtain historical cell-site information that previously
46
had been accessible simply by an order pursuant to 18 U.S.C. 2703(d) (as opposed to
2703(c)(A), which provides authority for obtaining a warrant).
As the Court in Davis pointed out, 2703(d) does not require probable cause, but only a
showing that there are reasonable grounds to believe that the . . . records or other information
sought, are relevant and material to an ongoing criminal investigation. 2014 WL 2599917, at
*3 (emphasis added).
In analyzing whether that standard was sufficient under the Fourth Amendment, the Court
in Davis concluded that [i]n light of the confluence of the three opinions in the Supreme Court's
decision in Jones, we accept the proposition that the privacy theory is not only alive and well, but
available to govern electronic information of search and seizure in the absence of trespass. Id.,
at *8.
Continuing its analysis, the Court in Davis reasoned that
[t]herefore, it cannot be denied that the Fourth Amendment
protection against unreasonable searches and seizures shields the
people from the warrantless interception of electronic data or
sound waves carrying communications. The next step of analysis,
then, is to inquire whether that protection covers not only content,
but also the transmission itself when it reveals information about
the personal source of the transmission, specifically his location.
The Supreme Court in Jones dealt with such an electronic seizure
by the government and reached a conclusion instructive to us in the
present controversy.
Id., at *5.
In Davis, too, the Court eschewed any constraint Smith might impose, even in a clearly
non-trespassory context. Thus, even if Smith survives as a technical matter of stare decisis
(because it has not been formally overruled), technology, time, and the trio of decisions Riley
and Jones in the Supreme Court, and Davis in the Eleventh Circuit have superseded it for
47
practical purposes. See Jones, 132 S. Ct. at 954 ([i]t may be that achieving the same [tracking]
result through electronic means, without an accompanying trespass, is an unconstitutional
invasion of privacy, but the present case does not require us to answer that question).
Moreover, the results in those cases provide clear guidance rather than ambiguity and
confusion that is generated by legal doctrine that fails to keep pace with technology and the
prevailing social environment it creates. As the Court noted in Riley, the governments
proposals would conflict with our general preference to provide clear guidance to law
enforcement through categorical rules. [I]f police are to have workable rules, the balancing of
the competing interests . . . must in large part be done on a categorical basis not in an ad hoc,
case-by-case fashion by individual police officers. 134 S. Ct. at 2491-92, quoting Michigan v.
Summers, 452 U.S. 692, 705, n. 19 (1981) (in turn quoting Dunaway v. New York, 442 U.S. 200,
219220 (1979) (White, J., concurring)). See also 134 S. Ct. at 2497 (Alito, J., concurring in the
judgment) ([w]hile the Court's approach leads to anomalies, I do not see a workable alternative.
Law enforcement officers need clear rules regarding searches incident to arrest, and it would take
many cases and many years for the courts to develop more nuanced rules. And during that time,
the nature of the electronic devices that ordinary Americans carry on their persons would
continue to change).
3. The Warrants In the Investigation Constituted Impermissible General Warrants
In United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926), Learned Hand pointed out
that it is a totally different thing to search a mans pockets and use against him what they
contain, from ransacking his house for everything which may incriminate him. Id., at 203. See
also Riley, 134 S. Ct. at 2490-91 (noting that if the persons pockets included a cell phone, there
48
would no longer be a difference except that the cell phone would expose more information to the
government than a search of a residence).
Here, the governments seizures and searches represent the confluence of Judge Hands
observation and that of the Court in Riley: a wholesale, unlimited, and unrestrained rummaging
through the entirety of Mr. Ulbrichts digital existence and expressly and deliberately so. The
result is nothing less than the paradigmatic, impermissible general warrant.
a. The Facts Relevant to the Warrants At Issue
The warrants that operated as general warrants can be categorized as follows:
(1) the warrants for the Jtan.com servers in Pennsylvania, alleged to be Silk Roads
backup servers, did not include any limiting principles, thereby authorizing search
of the entire server(s). Yet the applications failed to inform the issuing magistrate
judge that (a) the commerce on Silk Road included legitimate transactions for
legal goods and services, and these transactions were neither acknowledged nor
segregated; and (b) many of the transactions in contraband did not violate U.S.
law for jurisdictional or other, substantive reasons (for instance, involving buyer
and seller operating in other countries, without any connection to the U.S., or in
which the merchandise was not illegal at all).
(2) the pen-trap orders, discussed ante, too, failed to provide any minimization
principles or attempts to confine the information collected to that for which there
was an adequate basis;
(3) the warrants for the entirety of Mr. Ulbrichts laptop, and gmail and Facebook
accounts expressly included materials and information for which probable cause
49
did not exist, and licensed the very type of unrestrained rummaging that motivated
the Framers to create the Fourth Amendment.
This section will concentrate on the latter warrants, which, in the context of general
warrants, are the most egregious. Indeed, they are the paradigm of a general warrant not only in
execution, but also in design, language, and purpose. For example, the warrant for the laptop
sought, and received, authorization to search for the following (with only the most patently
offending paragraphs cited herein):
44. The SUBJECT COMPUTER is also likely to contain evidence concerning
ULBRICHT relevant to the investigation of the SUBJECT OFFENSES,
including evidence relevant to corroborating the identification of
ULBRICHT as the Silk Road user "Dread Pirate Roberts," including but
not limited to:
a. any communications or writings by Ulbricht, which may reflect
linguistic patterns or idiosyncracies associated with Dread Pirate
Roberts[] or political/economic views associated with Dread
Pirate Roberts (e.g., views associated with the Mises Institute);
c. any evidence concerning Ulbricht's travel or patterns of movement,
to allow comparison with patterns of online activity of Dread
Pirate Roberts and any information known about his location at
particular times
h. any other evidence implicating ULBRICHT in the SUBJECT
OFFENSES.
See Exhibit 11, at 44 (footnote omitted).
The footnote to 44(a) provided the only detail, but even that did not provide a limiting
principle, as it targeted something that would require detailed review of everything Mr. Ulbricht
has ever written:
For example, Dread Pirate Roberts is known often to begin
sentences with Yea distinct from the usual spelling of the
word, Yeah. ULBRICHT is also known to favor this spelling of
the word; for instance, his username on YouTube is ohyeaross.
The SUBJECT PREMISES is expected to contain writings or
50
communications that will allow for similar linguistic comparisons
between ULBRICHT and Dread Pirate Roberts.
Id., at 44(a) n. 21.
The deliberate intention to review everything was further manifest from Attachment B to
the warrant, which included authority to search the laptop for
2. Any evidence concerning ROSS WILLIAM ULBRICHT relevant to the
investigation of the SUBJECT OFFENSES, including but not limited to:
a. any communications or writings by ULBRICHT;
c. any evidence concerning ULBRICHT'S travel or patterns of
movement;
Id., at Attachment B.
Moreover, the warrants for Mr. Ulbrichts gmail and Facebook accounts were similarly
without boundaries. See Exhibits 13 and 14. Thus, the entirety of Mr. Ulbrichts private
papers, and more (i.e., his internet history, political or other associations) were expressly
targeted by the government.
21
That defines the very general warrants that attracted the ire of the Framers. See ante,
at14-17. As the cases discussed below demonstrate, the Fourth Amendments particularity
requirement was designed to prevent such searches. Here, the abrogation of the particularity
requirement mandates suppression.
In another high profile British case that attracted the colonists attention, Wilkes v.
21
Wood, 19 How. St. Tr. 1153, 1156 (1763), John Wilkes, a member of Parliament was subject to
an unrestricted search in which those conducting itfetched a sack and filled it with Wilkess
private papers. The celebrated Lord Camden noted that when those performing the search balked
at taking all of Wilkess papers, Lord Halifax ordered that all must be taken, manuscripts and
all.
51
b. Digital Communications Are Protected By the Fourth Amendment
In United States v. Warshak, 631 F.3d 266, 285-86 (6 Cir. 2010), the Sixth Circuit
th
concluded that email is is the technological scion of tangible mail and that it would defy
common sense to afford emails lesser Fourth Amendment protection. In so ruling, the court
also explicitly rejected the argument that a service providers ability or right to access the content
of email should somehow defeat the communicants Fourth Amendment privacy interest.
Instead, Warshak likened service providers to the functional equivalent of a post office
or a telephone company, which the police may not simply storm to read a letter. Id., at 286.
The Sixth Circuit relied on the Supreme Courts decision in City of Ontario v. Quon, 560 U.S.
746, 762-63 (2010), involving text messages sent and received on a government employees
pager (implying that a search of [an individuals] personal e-mail account would be just as
intrusive as a wiretap on his home phone line), and the Ninth Circuits decision in United
States v. Forrester, 512 F.3d 500, 511 (2008) (holding that [t]he privacy interests in [mail and
email] are identical).
Yet here the searches of Mr. Ulbrichts laptop and gmail and Facebook accounts were far
more intrusive than a Title III wiretap, which requires minimization procedures aimed at limiting
recording to those conversations that are pertinent to the investigation for which the wiretap was
authorized.
c. The Overriding Importance of the Particularity Requirement
The critical importance of the particularity requirement in preserving Fourth Amendment
rights and protections in the digital age has been recognized by the courts. In United States v.
Galpin, 720 F.3d 436 (2d Cir. 2013), the Court observed that
52
[w]here, as here, the property to be searched is a computer hard
drive, the particularity requirement assumes even greater
importance. As numerous courts and commentators have observed,
advances in technology and the centrality of computers in the lives
of average people have rendered the computer hard drive akin to a
residence in terms of the scope and quantity of private information
it may contain.
Id., at 447, citing United States v. Payton, 573 F.3d 859, 86162 (9th Cir.2009) ([t]here is no
question that computers are capable of storing immense amounts of information and often
contain a great deal of private information. Searches of computers therefore often involve a
degree of intrusiveness much greater in quantity, if not different in kind, from searches of other
containers.) (other citation omitted) (footnote omitted). See also United States v. Ganias, ----
F.3d ----, 2014 WL 2722618 (2d Cir. June 17, 2014); United States v. Otero, 563 F.3d 1127,
1132 (10 Cir. 2009); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev.
th
531, 569 (2005).
In fact, in Ganias and Galpin the Second Circuit has twice reversed convictions and
suppressed evidence because of violations of the particularity requirement. In Ganias, the Court
noted that the particularity requirement makes general searches . . . impossible because it
prevents the seizure of one thing under a warrant describing another. 2014 WL 2722618, at
*7, quoting Galpin, 720 F.3d at 446 (quoting Marron v. United States, 275 U.S. 192, 196 (1927))
(internal quotation marks omitted). This restricts the Government's ability to remove all of an
individual's papers for later examination because it is generally unconstitutional to seize any item
not described in the warrant. See Horton v. California, 496 U.S. 128, 140 (1990).
Nor is the protest here about the initial seizure of hard drives via imaging for off-site
53
review. Ganias has already noted that such a procedure is constitutionally permissible. 2014
WL 2722618, at *8. Rather, it is the lack of any limiting standards or procedures in that review.
Indeed, the language cited above from the applications and warrants manifests the opposite
intent: a detailed review of every piece of digital information.
Ganias addressed a limited issue, whether the Fourth Amendment permits officials
executing a warrant for the seizure of particular data on a computer to seize and indefinitely
retain every file on that computer for use in future criminal investigations, id., at *10, but
nevertheless recognized that computer files may contain intimate details regarding an
individuals thoughts, beliefs, and lifestyle, and they should be similarly guarded against
unwarranted Government intrusion. If anything, even greater protection is warranted. Id., at *7,
citing Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev. at 569 (explaining that
computers have become the equivalent of postal services, playgrounds, jukeboxes, dating
services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and
more).
Here, the government expressly seeks unfettered access to precisely the type of papers
cited by the Court in Ganias: intimate details regarding Mr. Ulbrichts thoughts, beliefs, and
lifestyle, without any demonstration of probable cause to search any of those papers.
Ganias followed Galpin, which a year earlier had explained that the purpose of the
particularity requirement is to minimize the discretion of the executing officer . . . 720 F.3d at
446 n. 5, and pointed out that [m]indful of that purpose, . . . other Circuits have held that even
warrants that identify catchall statutory provisions, like the mail fraud or conspiracy statutes, may
fail to comply with this aspect of the particularization requirement. Id., citing United States v.
54
Leary, 846 F.2d 592, 594 (10th Cir.1988) (warrant authorizing search of export company's
business records for violation of the Arms Export Control Act, 22 U.S.C. 2778, and the
Export Administration Act of 1979, 50 U.S.C.App. 2410, held overbroad); Voss v.
Bergsgaard, 774 F.2d 402 (10th Cir.1985) (warrant specifying 18 U.S.C. 371, the general
federal conspiracy statute, held overbroad); United States v. Roche, 614 F.2d 6, 8 (1st Cir.1980)
(concluding that a limitation of a search to evidence relating to a violation of 18 U.S.C. 1341,
the general mail fraud statute, provides no limitation at all).
In Galpin, the Court also recounted that it has emphasized that a failure to describe the
items to be seized with as much particularity as the circumstances reasonably allow offends the
Fourth Amendment because there is no assurance that the permitted invasion of a suspects
privacy and property are no more than absolutely necessary. 720 F.3d at 446, quoting United
States v. George, 975 F.2d 72, 76 (2d Cir.1992).
In language particularly germane here, the Court in Galpin cautioned that [t]he potential
for privacy violations occasioned by an unbridled, exploratory search of a hard drive is
enormous[,] and that [t]his threat is compounded by the nature of digital storage. 720 F.3d at
446-47. The Circuit has thus far declined to impose the type of search protocols enumerated by
Judge Kozinski in his concurring opinion in United States v. Comprehensive Drug Testing, Inc.,
621 F.3d 1162, 1176 (9th Cir.2010) (en banc) (per curiam). However, the Court in Galpin
recognized a serious risk that every warrant for electronic information will become, in effect, a
general warrant, rendering the Fourth Amendment irrelevant[,] and that [t]his threat demands
a heightened sensitivity to the particularity requirement in the context of digital searches. 720
F.3d at 447-48, quoting Comprehensive Drug Testing, 621 F.3d at 1176, and citing United States
55
v. Burgess, 576 F.3d 1078, 1091 (10th Cir.2009) (If the warrant is read to allow a search of all
computer records without description or limitation it would not meet the Fourth Amendment's
particularity requirement).
In that context, the Court in Galpin instructed that upon remand the district courts review
of the plain view issue should take into account the degree, if any, to which digital search
protocols target information outside the scope of the valid portion of the warrant. To the extent
such search methods are used, the plain view exception is not available. 720 F.3d at 451.
Here, again, no such limiting principles were instituted at all. In fact, the warrants herein
invert the analysis in a manner that dissolves Fourth Amendment protections. Rather than
require the government to establish probable cause in advance of reviewing categories of
electronic data, they would license the government to examine every file to assure that probable
cause to seize it did not exist. Any more dramatic or patent example of the rummaging
attendant to general warrants could not be envisioned, yet that is what the government has done
in this case most demonstrably with respect to Mr. Ulbrichts laptop and gmail and Facebook
accounts, but in fact with respect to every search of ESI in this investigation.
22
Regarding seizures of entire e-mail accounts, recently Magistrate Judge Gorenstein issued
an opinion to address two opinions that denied the government access to an entire e-mail
account. See In the Matter of A Warrant for all Content and Other Information Associated With
the Email Account xxxxx@Gmail.com Maintained at Premises Controlled By Google, Inc., 14
Mag. 309 2014 WL 3583529 (S.D.N.Y. July 18, 2014) (hereinafter Gmail).
See NACDL Report, at 12 ([e]ven if every nook and cranny of a digital device could
22
theoretically contain evidence covered by the warrant, it does not mean that every nook and
cranny may reasonably contain such evidence. (Emphasis in original).
56
The two opinions to which his opinion was directed were In the Matter of the Search of
Information Associated with [Redacted] @mac.comthat is Stored at Premises Controlled by
Apple, Inc., not reported in F. Supp.2d, available at 2014 WL 1377793, at *8 n. 15 (D.D.C. April
7, 2014) (hereinafter Apple) and In the Matter of Applications for Search Warrants for
Information Associated With Target Email Accounts/Skype Accounts, not reported in F. Supp.2d,
available at 2013 WL 4647554 (D. Kansas August 27, 2013) (hereinafter Skype).
In Apple, the Court concluded the government sought a warrant that would be
unconstitutional because [t]he government simply has not shown probable cause to search the
contents of all emails ever sent to or from the account. 2014 WL 1377793, at *5 (citation and
internal quotes omitted). As a result, the Court reasoned, if it were to grant the Renewed
Application as it is, the government would immediately seize a vast quantity of e-mails to which
it is not entitled; in so doing, this Court would issue a general warrant, which it cannot do. Id.,
at *6.
The Magistrate Judge in Skype reached the same conclusion, noting that a warrant must
describe the things to be seized with sufficiently precise language so that it informs the officers
how to separate the items that are properly subject to seizure from those that are irrelevant.
2013 WL 4647554, at *5. The Court in Skype further pointed out that the warrants failed to set
out any limits on the government's review of the potentially large amount of electronic
communications and information obtained from the electronic communications service
provider[,] and do not identify any sorting or filtering procedures for electronic
communications and information that are not relevant and do not fall within the scope of the
governments probable cause statement, . . . Id., at *8. See also id. ([t]he government simply
57
has not shown probable cause to search the contents of all emails ever sent to or from the
accounts or for all the information requested from the Providers).
The carte blanche the government sought but was denied in Skype, see id., at *9, was
nevertheless provided here, and violated the Fourth Amendment. Nor does Magistrate Judge
Gorensteins opinion alter that analysis. In his opinion, Magistrate Judge Gorenstein
permitted a search for certain specific categories of evidence. Gmail, 2014 WL 3583529, at
*1. That was not the case as no specific categories of evidence were listed. Instead, there was no
definition at all, but rather an omnibus license.
Similarly, the principles cited in Gmail simply reinforce the lack of particularity with
respect to the warrants at issue herein. For example, the warrants here do not permit mere
perusal to determine relevance, as in United States v. Mannino, 635 F.2d 110, 115 (2d
Cir.1980) (quoting United States v. Ochs, 595 F.2d 1247, 1257 n. 8 (2d Cir.1979)).
Nor do the warrants here seek merely a cursory review for purposes of determining
relevance, as in Andersen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 49 L.Ed.2d 627
(1976) ([i]n searches for papers, it is certain that some innocuous documents will be examined,
at least cursorily, in order to determine whether they are, in fact, among those papers authorized
to be seized).
Indeed, the government has announced in the applications that it intends to perform
various detailed analyses of the entirety of Mr. Ulbrichts communications and digital history.
That guarantees that every piece of digital information will be subject to a detailed search in the
absence of any probable cause to search any specific piece of ESI.
58
Nor is the principle that a warrant can seek and seize mere evidence availing to the
government with respect to these warrants. See Warden v. Hayden, 387 U.S. 294 (1967).
Warden involved a discrete set of physical objects clothing and weapons directly related to the
offense charged that were easily identifiable, not a fishing expedition into the entirety of
someones communications and research history.
Also, in Warden the Court cautioned that [t]here must, of course, be a nexus
automatically provided in the case of fruits, instrumentalities or contraband between the item to
be seized and criminal behavior. 387 U.S. at 300. Nor does the doctrine dispense with the
particularity requirement. Id., at 309-10.
Moreover, the explicit concentration on political opinions and association, and other
constitutional rights such as travel, see Exhibit 11, at 44 (ante, at 50) implicates First
Amendment freedoms in a very tangible fashion. As Justice Sotomayor warned in her
concurrence in Jones, [a]wareness that the Government may be watching chills associational
and expressive freedoms. 132 S. Ct. at 956 (Sotomayor, J., concurring).
Nearly 60 years ago, Justice Douglas wondered of the impact of the very practice the
government has conducted in this case with respect to these warrants:
[t]he time may come when no one can be sure whether his words
are being recorded for use at some future time; when everyone will
fear that his most secret thoughts are no longer his own, but belong
to the Government; when the most confidential and intimate
conversations are always open to eager, prying ears. When that
time comes, privacy, and with it liberty, will be gone. If a mans
privacy can be invaded at will, who can say he is free? If his every
word is taken down and evaluated, or if he is afraid every word
may be, who can say he enjoys freedom of speech? If his every
association is known and recorded, if the conversations with his
associates are purloined, who can say he enjoys freedom of
association? When such conditions obtain, our citizens will be
59
afraid to utter any but the safest and most orthodox thoughts; afraid
to associate with any but the most acceptable people. Freedom as
the Constitution envisages it will have vanished.
Osborn v. United States, 385 U.S. 323, 35354 (1966) (Douglas, J., dissenting). See also
Alliance to End Repression v. City of Chicago, 627 F. Supp. 1044, 1054, 1056 (N.D. Ill. 1985)
(recognizing that even if all of the individual details of a persons life are available publicly
as could be the case in the not-too-distant future the recording of those details, as with public
cameras or other surveillance technologies, can only serve to stifle the very sort of lawful,
robust dissent that the first amendment, from its inception, was intended to protect); Boyd v.
United States, 116 U.S. at 623 (The search for and seizure of stolen or forfeited goods, or goods
liable to duties and concealed to avoid the payment thereof, are totally different things from a
search for and seizure of a mans private books and papers for the purpose of obtaining
information therein contained, or of using them as evidence against him).
Here, the warrants expressly even deliberately fail to adhere to the Fourth
Amendments particularity requirement, and constitute general warrants. As a result, it is
respectfully submitted that all evidence seized and/or searched pursuant to those warrants and
orders, and all the fruits therefrom, should be suppressed.
POINT II
THE COURT SHOULD COMPEL
THE GOVERNMENT TO PRODUCE
THE REQUESTED DISCOVERY
The following discovery and information is necessary to assist defense counsel in
determining whether any information gathered during the course of the governments
investigation was obtained in violation of Mr. Ulbrichts rights pursuant to the Fourth
60
Amendment to the United States Constitution. In addition, the documents and data requested
below are necessary to ensure Mr. Ulbrichts Sixth Amendment right to prepare a defense, and
their disclosure is required pursuant to Rule 16, Fed.R.Crim.P.
Accordingly, Mr. Ulbricht requests an Order compelling the Government to produce the
following discovery and other materials:
1. A list of IP addresses the government, including any branch of law enforcement in
the U.S. or in any other country working with or sharing information with the
U.S., or any private contractor, used to access or attempt to access the Silk Road
servers;
2. Identify the person, persons, entity or entities associated with each government
IP address;
3. The results of any and all network testing including, but not limited to, trace
routes, IP address pings, penetration tests, and/or port scans which the
government, including any branch of law enforcement in the U.S. or in any other
country working with or sharing information with the U.S., or any private
contractor, used to verify the existence of the Silk Road servers and/or conduct
analysis of the Silk Road servers, in regard to their physical location, identifying
information, and/or for any other purpose;
4. Any data and/or communications obtained from and/or involving the server hosts
from which server images were obtained, including, but not limited to, any e-
mails, letters, and server traffic logs;
5. Specify whether the government including any branch of law enforcement in
61
U.S., or any private contractor, ever ran any who is queries to determine the
location, host, service provider or IP address of the servers;
6. Identify any vulnerability scanning utilities used to detect vulnerabilities in the
Silk Road servers and,
a. the name any such utilities used;
b. the dates and times of any such scans; and,
c. the names of any exploits used including but not limited to names of
technology, malware and hacking tools used;
7. Specify whether the government including any branch of law enforcement in
U.S., or any private contractor, used denial of service attacks on the Silk
Road website or servers;
8. Identify the names of any TOR hidden service vulnerabilities the government
including any branch of law enforcement in the U.S. or in any other country
working with or sharing information with the U.S., or any private contractor,
utilized during the course of the investigation;
9. Identify any information pertaining to TOR servers deployed by the government
including any branch of law enforcement in the U.S. or in any other country
working with or sharing information with the U.S., or any private contractor,
during the course of the investigation;
10. Identify any public keys or addresses for any bitcoin wallets that were used by the
62
contractor, for conducting this investigation;
11. Identify the dates, times, and usernames associated with any controlled buys
conducted by law enforcement on the Silk Road website;
12. Identify a list of usernames and/or aliases that were used by law enforcement in
U.S., or any private contractor, on the Silk Road website at any time during the
course of the investigation;
13. Identify any bitcoin addresses that the government, including any branch of law
enforcement in the U.S. or in any other country working with or sharing
information with the U.S., or any private contractor, knew or suspected was
directly associated with or belonged to Ross Ulbricht;
14. Identify the means and methods the government, including any branch of law
information with the U.S., or any private contractor, used for tracing bitcoin
transactions;
15. Identify any documents relating to any block chain analysis conducted by the
contractor, during the investigation;
63
16. Identify any transaction information, including, but not limited to, shipping
address information, transaction IDs, buyer and seller identifications, and/or
payment information obtained from the Silk Road server MYSQL and/or other
databases with regard to the package intercepted from Canada;
17. Identify any information regarding methods or procedures in place for monitoring
data entered into Silk Road server MYSQL and/or other databases, including, but
not limited to, any tools or software used for this purpose;
18. Specify whether the government, including any branch of law enforcement in the
U.S. or in any other country working with or sharing information with the U.S., or
any private contractor, was aware at any point prior to the location of the servers
overseas that there were servers located in the U.S.;
19. Identify the means and methods the government, including any branch of law
information with the U.S., or any private contractor, used to locate the Silk Road
servers overseas;
20. Identify the contents of any and all MLAT requests related to this investigation;
and,
21. Inquire of U.S. law enforcement and intelligence agencies with respect to whether
any parallel construction has occurred in this investigation, and disclose any and
all information regarding parallel construction.
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POINT III
THE COURT SHOULD COMPEL THE
GOVERNMENT TO PRODUCE THE
REQUESTED BILL OF PARTICULARS
As the Second Circuit has explained, a bill of particulars:
is appropriate to permit a defendant to identify with sufficient
particularity the nature of the charge pending against him, thereby
enabling defendant to prepare for trial, to prevent surprise, and to
interpose a plea of double jeopardy should he be prosecuted a
second time for the same offense.
United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988), quoting United States v.
Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). See also United States v. Nachamie, 91 F.
Supp.2d 565, 570 (S.D.N.Y. 2000) (quoting Bortnovsky, 820 F.2d at 574) (ordering a Bill of
Particulars).
Without further elucidation of the generic descriptions of the charges against him in the
Indictment, Mr. Ulbricht will be unable to prepare his defense as he will not be able to isolate the
specific transactions that he must defend against. Thus, Mr. Ulbrichts request for a bill of
particulars should be granted.
A. A Bill of Particulars Is Necessary for the Preparation of Mr. Ulbrichts Defense
Absent a bill of particulars, Mr. Ulbricht will proceed to trial without sufficient notice of
precisely what charges he faces, and without ample time to identify and locate witnesses and/or
conduct a meaningful investigation of the offenses alleged. The Indictment alleges that the Silk
Road underground website was designed to enable users across the world to buy and sell
illegal drugs and other illicit goods and services anonymously and that [t]he website was used
by several thousand drug dealers and other unlawful vendors to distribute hundreds of kilograms
65
of illegal drugs and other illicit goods and services to well over a hundred thousand buyers
worldwide, and to launder hundreds of millions of dollars deriving from these unlawful
transactions. See Indictment at 1, 2 (emphasis added).
Moreover, the discovery produced thus far demonstrates that witnesses may be located in a
number of countries, including the United Kingdom, Australia, Iceland, and France, and
elsewhere, and that transactions that occurred on the Silk Road may have occurred in locations
all over the world. In this case, ordinary and efficient investigation is impeded by a number of
traditional factors (i.e., language, culture, and governmental authority) beyond counsels control,
but also uniquely by the sheer volume and seemingly impenetrable anonymity of the transactions
that took place on the Silk Road site and the persons involved in these transactions, which defy
any effort counsel could make to determine the precise volume of transactions and potential
witnesses involved, let alone the specifics of any of these transactions or the locations they
occurred in, or in which their alleged participants reside. Consequently, learning important
particulars immediately before, or even during trial, will effectively preclude any defense
investigation, or ability to prepare adequately, with respect to those issues.
As a result, a bill of particulars is necessary to inform Mr. Ulbricht of the specific elements
of the charged conspiracies and substantive offenses, including, in key part (1) particularization
and enumeration of specific transactions the Indictment describes in undefined or only general
terms; and (2) the manner of, contents of, and parties involved in, the communications alleged. If
Mr. Ulbricht is not provided with a bill of particulars, his ability to prepare his defense will be
irremediably impaired.
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1. The Government Must Particularize Transactions the
Indictment Describes In Undefined or Only General Terms
The Indictment in Mr. Ulbrichts case is scant on details and speaks only in broad and
undefined terms, thus boiling a complex, multi-transactional case down to sweeping generalities
that provide no specifics and no roadmap to the charges Mr. Ulbricht will be required to defend
against. See Indictment at 2 ( [t]he website was used by several thousand drug dealers and
other unlawful vendors to distribute hundreds of kilograms of illegal drugs and other illicit goods
and services to well over a hundred thousand buyers worldwide, and to launder hundreds of
millions of dollars deriving from these unlawful transactions); 12 (violations were part of a
continuing series of violations of the Controlled Substance Act); 14 ([w]hile in operation, the
Silk Road website regularly offered hundreds of listings for [malicious software] products); 21
(the defendant, and others known and unknown . . . would and did conduct financial transactions,
which in fact involved the proceeds of specified unlawful activity). Descriptions in the
Indictment routinely omit necessary details such as (1) locations, dates, times, and precision as to
the volume of that transactions occurred; (2) the parties involved in transactions; and (3) the
definitions of terms or words, such as illicit goods and services, that characterize the
transactions.
In United States v. Bin Laden (El-Hage), 92 F. Supp.2d 225 (S.D.N.Y. 2000), Judge Sand
explained that a bill of particulars [was] necessary . . . to permit the Defendants to prepare a
defense and to prevent prejudicial surprise at trial, based, in part, on the Courts conclusion that
several of the allegations contained in the Overt Acts section of the Indictment are cast in terms
that are too general, in the context of [that] particular case, to permit the Defendants to conduct a
67
meaningfully directed investigation of the relevant facts and circumstances and be prepared to
respond to the charges. Id., at 235 (emphasis added).
In Mr. Ulbrichts case, only one of the conspiracies charged even contains a list of overt
acts, and these, for Count One, do not relate to the multitude of transactions alluded to in that
count and include entirely extraneous details, such as the murder-for-hire allegations that are the
subject of Mr. Ulbrichts motion to strike irrelevant and prejudicial surplusage. Accordingly, the
transactions described in Count One and the Indictment as a whole lack specificity, and without
the details requested by Mr. Ulbricht, such as geographical locations, dates, times, participants,
and particularization of acts alleged, it would be impossible for Mr. Ulbricht to conduct a
meaningfully directed investigation.
Moreover, due to the essentially global nature of the transactions in this case, if Mr.
Ulbricht is not notified of these particulars sufficiently in advance of trial, he will be unable, at the
eleventh hour, to mount a defense based on witnesses, documents, and/or other information that
can be procured and produced only through rather challenging, if feasible at all, international
investigation and travel. Under such circumstances, his ability to prepare and present a defense
would be irreparably impaired. See Bin Laden (El-Hage), 92 F. Supp.2d at 234-36.
23
Nor does the albeit voluminous discovery in this case provide a roadmap for the alleged
transactions that would obviate the need for a bill of particulars.
As this Court stated last year in United States v. Mostafa, 965 F.Supp.2d 451, 465
(S.D.N.Y. 2013), a bill of particulars is . . . unnecessary when the Government has produced
The unsatisfactory alternative, of course, is a last-minute delay of the trial, or
23
substantial continuance(s) once it begins, in order to permit Mr. Ulbricht to rebut evidence he
should be permitted to prepare for now.
68
materials in discovery concerning the witness and other evidence and [t]hus, in determining
whether to order a bill of particulars a court must examine the totality of the information available
to the defendant, both through the indictment and through pre-trial discovery. See also Bin
Laden, 92 F. Supp.2d at 233.
Bortonovsky is instructive in conducting this examination in Mr. Ulbrichts case in that the
defendant in Bortonovsky was faced with a similar situation to that which Mr. Ulbricht faces here:
the government refused to respond to a bill of particulars request from the defendant in his
insurance fraud case despite the fact that [n]owhere in the indictment . . . d[id] the Government
specify the dates of the staged burglaries or enumerate which of numerous documents were
falsified on the basis that it fulfilled its obligation to inform [defendants] of the charges by
being explicit in the indictment and by providing over 4,000 documents to defense counsel during
discovery. Id., at 574.
In Bortonovsky, the Court found that the defendants were hindered in preparing their
defense by the district courts failure to compel the Government to reveal crucial information: the
dates of the fake burglaries and the identity of the three fraudulent documents. Id., at 574. The
Court also found that the Government did not fulfill its obligation merely by providing
mountains of documents to defense counsel who were left unguided as to which documents would
be proven falsified or which of some fifteen burglaries would be demonstrated to be staged. Id.,
at 575. The Court in Bortonovsky ultimately concluded that as a result of the governments failure
to reveal crucial information and the district courts failure to require it, [i]n effect, the burden of
proof impermissibly shifted to [the defendants]. Id., at 575.
69
Indeed, if Mr. Ulbricht is not provided a bill of particulars in this case he will suffer the
same fate. He cannot possibly be expected to parse through multiple terabytes of discovery in the
hopes that he will guess correctly as to the transactions that the government intends to put before
the jury, nor does the veiled nature of the case itself even allow for such an inquiry to take place.
Accordingly, to avoid surprise at trial and give [Mr. Ulbricht] sufficient information to
meet the charges against him as this Court stated was the very purpose of a bill of particulars, the
Court must Order the government to provide the requested bill of particulars to Mr. Ulbricht. See
Mostafa, 965 F.Supp.2d at 465, citing Bin Laden, 92 F. Supp.2d at 233.
2. The Government Must Identify the Contents Of, and
Parties Involved In, the Communications Alleged
The identification of the manner in which communications occurred, as well as the
specific persons involved in them, and their contents, alleged in the Indictment, are equally critical
to preparation of Mr. Ulbrichts defense. As with the transactions alleged in the Indictment, the
global nature of charges and thus potentially of the alleged communications, present unique
problems for Mr. Ulbrichts defense. Also, the precise nature by which communications were
alleged to have occurred is equally important to preparation, as that requires investigation, and
potentially acquisition of documentary evidence and expert forensic analysis.
In the absence of a bill of particulars providing the requested details of these
communications, defense counsel will not have ample time to identify and locate necessary
witnesses and other evidence that may be obtainable only through international investigation and
travel, or subpoena.
It should also be noted that material disclosed pursuant to discovery demands and 18
U.S.C. 3500, does not serve as a substitute for a bill of particulars. See, e.g., Davidoff, 845 F.2d
70
at 1155. This is especially true with regard to communications, and the transactions discussed
ante, since late notice (such as via production of 3500 material) might require postponement of
the trial in order to allow Mr. Ulbrichts defense team to pursue the evidence in remote and
difficult locations. See also ante, at n. 23.
B. The Requested Particulars
The Court should compel the government to provide the following particulars:
24
1. With respect to Count One, 1, please identify:
a. users across the world by name, Silk Road username, any other identifier,
and location; and
b. the specific nature of the other illicit goods and services.
a. the specific dates upon which Mr. Ulbricht is alleged to have owned the
Silk Road website;
b. the specific dates upon which Mr. Ulbricht is alleged to have operated the
Silk Road website ; and
c. by name, Silk Road username, location, any other identifier, and item(s)
distributed, the several thousand drug dealers and other unlawful
vendors.
Counsel requested a Bill of Particulars from the government July 31, 2014, and
24
attempted to informally resolve this discovery matter as required by Local Criminal Rule 16.1.
The government conveyed to counsel that same day by e-mail that it would not provide any of
the requested particulars on the basis that you have all the particulars you need in the complaint,
indictment, and discovery.
71
a. by name, Silk Road username, any other identifier, and role the various
paid employees Mr. Ulbricht is alleged to have managed and supervised
as well as the amounts, frequency, nature and dates of payment;
b. the type of assistance each of these paid employees allegedly provided;
c. the aspects of Silk Road Mr. Ulbricht is alleged to have controlled; and
d. the nature and amount of the commissions Mr. Ulbricht is alleged to have
reaped from the illicit sales conducted through the site and the specific
illicit sale, including date, time and location, that each commission was
for.
a. each of the violent means Mr. Ulbricht is alleged to have pursued by
date, time, location and nature of the conduct;
b. the date, time, location and nature of any alleged solicitat[ations] to
execute a murder-for-hire;
c. by name, Silk Road username if applicable, and any other identifier, the
several individuals Mr. Ulbricht allegedly solicit[ed] the murder-for-
hire of; and
d. the nature of the threat each of these individuals allegedly posed.
a. all locations encompassed by the term elsewhere;
b. the date on which it is alleged that Mr. Ulbricht first became a member of
the conspiracy charged in Count One;
72
c. the others by name, name, Silk Road username, any other identifier and
location; and
d. by date, time, location and nature, any specific acts performed by Mr.
Ulbricht in furtherance of the conspiracy charged in Count One.
a. the others by name, Silk Road username, any other identifier, and
location; and
b. the nature of the controlled substances allegedly distributed.
a. the others by name, Silk Road username, any other identifier, and
location;
b. the nature of the controlled substances allegedly deliver[ed],
distribute[d], and dispense[d];
c. the precise means by which the controlled substances were allegedly
deliver[ed], distribute[d], and dispense[d]; and
d. any role played by Mr. Ulbricht in these alleged transactions, including
date, time, location and nature of the role.
a. the nature of the communication facility; and
b. the date, time, location and nature of any specific acts that constituted the
alleged felonies.
73
9. With respect to Count One, 9, please identify the others by nature of controlled
substance and volume.
b. the time, date and location of each of the overt acts committed in the
Southern District of New York; and
c. the time, date and location of each of the overt acts committed elsewhere.
11. With respect to Count One, 10(a), please identify:
a. by name, Silk Road username, any other identifier and location each of the
drug dealers around the world that Mr. Ulbricht allegedly provided a
platform for; and
b. by type the variety of controlled substances each drug dealer allegedly
sold.
12. With respect to Count One, 10(b), please identify:
a. the specific date, time, location, medium, and nature of the alleged
solicit[ation];
b. by name, Silk Road user name, and any other identifier the Silk Road
user allegedly solicited to execute a murder-for-hire of another Silk
Road user;
c. by name, Silk Road user name, and any other identifier, the Silk Road
user that was the alleged target of the murder-for-hire;
74
d. the precise time, date, location and nature of the alleged threat[] to release
the identities of thousands of users of the site; and
e. by name, Silk Road user name, and any other identifier the thousands of
users of the site.
13. With respect to Count One, 10(c), please identify the specific date, time, and
location from which Mr. Ulbricht allegedly logged on as a site administrator to
the web server hosting the Silk Road website.
14. With respect to Count Two, 12, please identify:
b. by time, date and location any alleged acts committed by Mr. Ulbricht in
the Southern District of New York;
c. by time, date and location any alleged acts committed by Mr. Ulbricht
elsewhere;
d. by time, date, location, participants, and controlled substance, the specific
transactions that were part of a continuing series of violations of the
Controlled Substance Act that were allegedly undertaken by
ULBRICHT;
e. by name, Silk Road user name, and any other identifier, any and all of the
at least five other persons with respect to whom ULBRICHT occupied a
position of organizer, a supervisory position, and a position of
management; and
75
f. whether Mr. Ulbricht occupied a position of organizer, a supervisory
position and/or a position of management with respect to each individual.
15. With respect to Count Three, 14, please identify:
a. by name, type, brand, and any other identifier the specific malicious
software that the Silk Road website allegedly provided a platform for the
purchase and sale of;
b. the specific details including date, time, location, participants, and type of
product involved in each purchase and sale alleged to constitute a
violation pursuant to Count 3; and
c. the nature of the platform provided.
the conspiracy charged in Count Three;
c. the others by name, Silk Road username, any other identifier and
location; and
Ulbricht in furtherance of the conspiracy charged in Count Three.
a. the others by name, Silk Road username, any other identifier and
location;
76
b. the time, date and location of any alleged unauthorized access of any
computer and the identifying information for the computer accessed;
c. the precise nature of the information allegedly obtained from protected
computers; and
d. the specific nature of the commercial advantage or private financial
gain derived from each unauthorized access alleged.
18. With respect to Count Four, 18, please identify:
a. the specific nature of the illegal commerce conducted on the site; and
b. the users by name, Silk Road username, and any other identifier whose
identities Mr. Ulbricht allegedly sought to conceal; and
c. the users by name, Silk Road username, and any other identifier who
transmitt[ed] and receiv[ed] funds through the site.
the conspiracy charged in Count Four;
c. the others by name, Silk Road username, any other identifier and
location; and
Ulbricht in furtherance of the conspiracy charged in Count Four.
a. the others by name;
77
b. the specific nature, time, date and location of each of the financial
transactions alleged to involve the proceeds of specified unlawful
activity;
c. the specific nature of the unlawful activity allegedly involved in each
transaction;
d. the specific type of property involved in each transaction; and
e. the role, if any, that Mr. Ulbricht allegedly played in each and any
transaction.
a. the others by name;
b. the specific nature, time, date and location of each of the financial
transactions alleged to involve the proceeds of specified unlawful
activity;
c. the specific nature of the unlawful activity allegedly involved in each
transaction;
d. the specific type of property involved in each transaction; and
e. the role, if any, that Mr. Ulbricht allegedly played in each and any
transaction.
22. With respect to the forfeiture allegations, at 22, please identify:
a. the amount and nature of the property subject to forfeiture and basis upon
which it is subject to forfeiture; and
78
b. whether any such property was obtained directly or indirectly, as a result
of the offense.
a. the value and nature of the property subject to forfeiture and basis upon
which it is subject to forfeiture; and
b. whether any such property was obtained directly or indirectly, as a result
of the offense.
a. the value and nature of the property subject to forfeiture and basis upon
which it is subject to forfeiture;
b. the value and nature of any real property;
c. the value and nature of any personal property; and
d. the value and nature of any property traceable to such property and the
precise property it is traceable to.
POINT IV
THE COURT SHOULD STRIKE
IRRELEVANT AND PREJUDICIAL
SURPLUSAGE FROM THE INDICTMENT
The Indictment in this case contains surplusage that is both irrelevant to the charges and/or
unduly prejudicial to the defendant, in that (1) Count One of the Indictment includes extraneous,
inflammatory and unduly prejudicial references to uncharged murder-for-hire allegations
contained only in a separate case against Mr. Ulbricht in the District of Maryland ; (2) Count
79
Three of the Indictment refers to password stealers, keyloggers, and remote access tools as
malicious software designed for computer hacking which is both extraneous and highly
prejudicial because it provides a biased and incomplete characterization of the true nature of those
devices; and (3) the Indictment is peppered throughout with impermissible broadening phrases,
such as others known and unknown, among others, and elsewhere.
By inserting references in 4 & 10(b) of the Indictment, to the inflammatory and highly
prejudicial murder-for-hire allegations charged in the separate District of Maryland case against
Mr. Ulbricht, the government improperly seeks to tie Mr. Ulbricht to conduct that was not brought
before a grand jury in New York, and thus to improperly influence the jury to convict him here on
the basis of that uncharged conduct. Nor is this alleged conduct an element of Count One, or any
crime charged in the Indictment. As established post, any reference to the murder for hire
allegations is irrelevant to the offenses charged in Count One, and therefore unduly prejudicial.
The governments characterization of password stealers, keyloggers, and remote access
tools as malicious software designed for computer hacking in Count Three, 14 of the
Indictment, unduly prejudices Mr. Ulbricht by improperly suggesting to the jury that these devices
can only be used nefariously, a fact which the government must prove at trial, and undermined by
the governments recent endorsement of the use of malware.
Broadening phrases, such as others known and unknown, among others, and
elsewhere impermissibly expand the charges against Mr. Ulbricht.
Thus, this Court must strike language contained in 4 & 10(b) and 14 of the Indictment
referring to the murder-for- hire allegations and password stealers, keyloggers, and remote
access tools as malicious software designed for computer hacking respectively, pursuant to
80
Rule 7(d), Fed.R.Crim.P., as well as broadening phrases such as others known and unknown,
among others, and elsewhere, to protect Mr. Ulbrichts right to due process and a fair trial as
guaranteed by the Fifth and Sixth Amendments to the U.S. Constitution.
A. The Applicable Law Regarding Surplusage
Rule 7(d), Fed.R.Crim.P., provides that upon motion of a defendant, the Court may strike
extraneous matter, or surplusage, from an Indictment. Pursuant to Second Circuit case law a
defendant's motion to strike surplusage from an indictment will be granted so long as the language
is not relevant to the offenses and is either prejudicial or inflammatory. United States v.
Malochowski, 604 F.Supp.2d 512, 518 (N.D.N.Y. 2009) (granting defendants motion to strike
surplusage based on irrelevance and the danger of unfair prejudice), citing United States v.
Mulder, 273 F.3d 91, 99 (2d Cir.2001) ( [m]otions to strike surplusage from an indictment will
be granted only where the challenged allegations are not relevant to the crime charged and are
inflammatory and prejudicial); United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir.1990)
(reiterating that Rule 7(d) imposes an exacting standard).
In addition, any surplusage that remains in an Indictment implicates the defendants right
to due process and to a fair trial under the Fifth and Sixth Amendments because, as is well-settled
among the circuit courts, the government is under no obligation to sustain a conviction to
prove statements in the Indictment that constitute surplusage. See, e.g., United States v. Greene,
497 F.2d 1068, 1086 (7 Cir. 1984) ([t]he language of indictment, insofar as it goes beyond
th
alleging elements of statute, is . . . surplusage . . [and] such surplusage in an Indictment need not
be proved); United States v. Archer, 455 F.2d 193, 194 (10 Cir. 1972) ([i]t is not essential that
th
everything in an Indictment be proved); Milentz v. United States, 446 F.2d 111, 114 (10 Cir.
th
81
1971) (mere surplusage . . . need not be proved); Gawne v. United States, 409 F.3d 1399, 1403
(9 Cir. 1969) (allegation of the indictment was surplusage [because it was not an element of the
th
offense] and need not have been proved). Accordingly, to leave such language in an indictment
is inherently unfair and a denial of due process.
Indeed, in applying the exacting standard, this Court recently addressed the type of
language that constitutes surplusage, and therefore must be deleted from an indictment, in
Mostafa, 965 F.Supp.2d at 466-67 (denying defendants motion to strike surplusage with leave to
renew).
In Mostafa, this Court acknowledged that pursuant to Rule 7(d), Fed.R.Crim.P., the Court
may strike extraneous matter or surplusage from an indictment . . . where the challenged
allegations are not relevant to the crime charged and are inflammatory or prejudicial. Id., at 466,
quoting Mulder, 273 F.3d at 99; Scarpa, 913 F.2d at 1013. The Court also established that [a]s
to broadening phrases, surplusage may be struck if it impermissibly expands the charge and that
broadening phrases in charging paragraphs can enlarge specific charges. Mostafa, 965
F.Supp.2d at 467, citing United States v. Kassir, S2 04 Cr. 356 (JFK), 2009 WL 995139
(S.D.N.Y. Apr. 9, 2003), United States v. Pope, 189 F.Supp. 12, 25 (S.D.N.Y. 1960).
On the specific facts of that case, however, the Court identified some of the contested
surplusage as background information that was on that basis relevant and need not be
struck, and ultimately denied the defendants motion with leave to renew on the basis that
Courts in this district routinely await presentation of the governments evidence at trial before
ruling on a motion to strike. Mostafa, 965 F.Supp.2d at 466-67.
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B. All References to Murder-For-Hire Allegations In Count One of the Indictment
Are Irrelevant to the Charged Offenses and Must Be Struck as Unduly
Prejudicial Surplusage, and to Protect Mr. Ulbrichts Right to Due
Process and a Fair Trial Guaranteed by the Fifth and Sixth Amendments
All references to Mr. Ulbricht soliciting the murder-for-hire of any individuals in
Count One, at 4 and 10(b), also must be struck from the Indictment as irrelevant and prejudicial
surplusage pursuant to Rule 7(d), Fed.R.Crim.P. in that (1) the allegation that Mr. Ulbricht
solicited any murder-for-hire is not charged conduct in this case nor is it an element of Count One
or any other count in the Indictment; (2) such language does not possess any probative value
under Rule 403, Fed.R.Evid.; and (3) the inclusion of such language violates Mr. Ulbrichts Fifth
and Sixth Amendment rights to due process and a fair trial in that it invites the jury to convict him
in this jurisdiction on the basis of uncharged conduct, although he has already been charged with
murder-for-hire in a separate Indictment in the District of Maryland.
1. The Murder-For-Hire Allegations Referenced in Count One are Irrelevant
and Unduly Prejudicial Surplusage Pursuant to Rule 7(d), Fed.R.Crim.P.;
in That They Are Not an Element of Either One Or Any Other Count
It is well-settled that surplusage should be struck from an Indictment pursuant to Rule
7(d), Fed.R.Crim.P., when such language is both irrelevant and prejudicial. See Mulder, 273 F.3d
at 99. Rule 401 of the Federal Rules of Evidence defines relevant evidence as evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence. Rule 401,
Fed.R.Evid. Moreover, in criminal trials, all facts presented to the jury must be strictly relevant
to the particular offense charged. Williams v. New York, 337 U.S. 241, 247 (1949).
83
In this case, the crucial question the government must prove at trial with regard to Count
One, is whether Mr. Ulbricht conspired to distribute and possess with intent to distribute
controlled substances in violation of the narcotics laws of the U.S. It is clear that the allegation
that Mr. Ulbricht solicit[ed] the murder-for-hire of several individuals is not an element of
Count One, nor is it a fact making it more or less probable that Mr. Ulbricht engaged in a
narcotics trafficking conspiracy as alleged in Count One. It is not admissible as background
information as it has nothing to do with the charges in this Indictment, which relate not to any
murder-for-hire plot, but are limited to the areas of drug trafficking, computer hacking, and money
laundering.
For these reasons, this case can also be distinguished from Mostafa, and the related case
Kassir, because in those cases the references to al Qaeda being led by Bin Laden [that each of
those defendants sought to strike] were relevant to the leadership and organization of the entity for
which the defendant[s] w[ere] charged with providing support, and was also admissible as
background information. Mostafa, 965 F.Supp.2d at 466; citing Kassir, F.Supp.2d, 2009 WL
995139, at * 2.
Accordingly, since there is no concrete link between the murder-for-hire allegations and
the unrelated drug trafficking and other charges in this case, it is clear that all references to
murder-for-hire are irrelevant to the charges, and their inclusion in the Indictment is highly
prejudicial to Mr. Ulbricht.
84
2. The Murder-For-Hire Allegations Referenced in Count One Must
Also Be Struck Pursuant to Fed.R.Evid. 403 Because They Lack Any
Probative Value and Are Therefore Unduly Prejudicial to Mr. Ulbricht
The references to murder-for-hire must also be struck from the Indictment because that
language is unduly prejudicial under the standard set forth in Fed.R.Evid. 403, which provides for
the exclusion of even relevant evidence which this is not when its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading
the jury. Rule 403, Fed.R.Evid. The danger of unfair prejudice is overwhelming in this case,
because of the toxic impact the mere mention of murder allegations would have on a jury.
Correspondingly, the offending language also presents the jury with an improper basis for
convicting Mr. Ulbricht, i.e., solely based on his alleged association with a murder-for-hire plot
that has never been charged in this District and is therefore beyond the scope of the Indictment
returned by the grand jury here. Thus, the Indictment leads the jury to ignore the factual issue of
whether Mr. Ulbricht engaged in a narcotics trafficking conspiracy and to instead focus on these
more inflammatory, murder-for-hire allegations. The irrelevant and highly prejudicial nature of
the references to the murder-for-hire allegations requires that such language be struck in its
entirety from the Indictment, pursuant to Rule 7(d).
3. References To The Murder-For-Hire Allegations Must Be
Struck from the Indictment to Protect Mr. Ulbrichts Fifth
and Sixth Amendment Rights to Due Process and a Fair Trial
In addition, the inclusion in the Indictment of uncharged murder-for-hire allegations is not
only irrelevant and inflammatory, but violates Mr. Ulbrichts constitutional rights to due process
and a fair trial. Since it is undisputed that the government need not prove that Mr. Ulbricht
solicited any murder-for-hire to convict him of Count One, as it is not an element of the crime(s)
85
charged, and because [t]he language of the indictment, insofar as it goes beyond alleging
elements of statute, is surplusage [and] . . .need not be proved[,] the government, through its
inclusion of this surplusage, invites the jury to convict Mr. Ulbricht in this district of conduct he
has never been charged with here and is already charged with in the District of Maryland. See,
e.g., Greene, 497 F.2d at 1086.
Accordingly, language in the Indictment referring to the murder for hire allegations must
be struck to preserve Mr. Ulbrichts constitutional protections under the Fifth and Sixth
Amendments, in so far as his right to due process and a fair trial.
C. Reference In Count Three of the Indictment to Password Stealers, Keyloggers,
and Remote Access Tools as Malicious Software Designed for Computer
Hacking,Are Extraneous and Must Be Struck as Unduly Prejudicial Surplusage,
and to Protect Mr. Ulbrichts Right to Due Process and a Fair Trial
Guaranteed by the Fifth and Sixth Amendments to the United States Constitution
The governments flawed and biased characterization in Count Three of the Indictment of
password stealers, keyloggers, and remote access tools as malicious software designed for
computer hacking, must be struck as extraneous and unduly prejudicial surplusage because these
devices have numerous legitimate uses and applications, despite having become associated with
illegal activity because of their use in high profile cases or fictional universes. See Indictment, at
14.
Indeed, as set forth in Mr. Ulbrichts pre-trial motions challenging the face of the
Indictment, even the FBI solicits malware. An FBI podcast dated March 14, 2014, announced that
Malware Investigator gives community of interest partners the ability to submit malware files.
The podcast announcement explains that Malware Investigator will determine the damage the
file can inflict[,] and will provide a technical analysis report to the submitter. See
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<http://www.fbi.gov/news/podcasts/thisweek/malware-investigator.mp3/view>. The FBI even
intends to launch Malware Investigator as a web site this summer. Id.
Accordingly, under the standard set forth in Rule 403, Fed.R.Evid. which excludes even
relevant evidence when its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues or misleading the jury, the language the government uses to
describe software allegedly sold on Silk Road is unduly prejudicial, as well as entirely extraneous
and inaccurate, and must therefore be struck from the Indictment.
Mr. Ulbricht also seeks to strike the governments conclusory language about the nature of
the software allegedly sold on Silk Road because it threatens to violate his Fifth and Sixth
Amendment rights. Indeed, the inclusion of the contested language in the Indictment relieves the
government of its burden of proving that Mr. Ulbricht did know that the purchaser or ultimate user
of the software allegedly purchased on the Silk Road website was not intending to use the
software for proprietary research, academic study, security purposes, or to satisfy his or her own
particular abstract interest, but instead to intentionally access computers without authorization,
and thereby...obtain[ing] information from protected computers, for purposes of commercial
advantage and private financial gain, in furtherance of criminal and tortious acts in violation of the
Constitution and the laws of the United States [and 18 U.S.C. 1030], the very offense charged
in Count Three.
D. Broadening Phrases, Such as Others Known and Unknown,
Among Others, and Elsewhere, must Be Stricken Because
They Impermissibly Expand the Charges Against Mr. Ulbricht
It is well-settled in this district, as this Court has acknowledged, that [a]s to broadening
phrases, surplusage may be struck if it impermissibly expands the charge and that broadening
87
phrases in charging paragraphs can enlarge specific charges. Mostafa, 965 F.Supp.2d at 467,
citing Kassir, 2009 WL 995139, at *2, Pope, 189 F.Supp., at 25 (holding that language
impermissibly delegated to the prosecution the authority to enlarge the specific charges, which
could have resulted in depriving [the] defendant of his constitutional right to be accused of a
felony offense only on the basis of a grand jury indictment). In this case, the Indictment
includes broadening language, including phrases such as others known and unknown, among
others, and elsewhere, which impermissibly expand the charges against Mr. Ulbricht beyond
the specific charges returned by the grand jury. Accordingly, since these phrases insinuate crimes
not charged, as well as untold numbers of transactions, locations and persons involved in each
crime that are not otherwise specified in the Indictment, or even decipherable from the evidence,
these phrases must be struck in their entirety.
Indeed, while Mr. Ulbricht is aware that this Court, in Mostafa, denied a motion to strike
surplusage with leave to renew, that addressed these specific phrases, the particular usage of these
phrases within the context of Mr. Ulbrichts case is distinguishable as are the specific
circumstances in this case.
For instance, in Mostafa, the Court denied the defendants motion to strike the term
among others though in a co-defendants case the court had struck the term among other
things because the phrase was not used in the same manner as in the indictment [in Mr.
Mostafas case]. Mostafa, 965 F.Supp.2d at 467, citing Kassir, 2009 WL 995139, at *4. In Mr.
Ulbrichts case the phrase among others, used only in 9 of the Indictment, is like the usage in
Kassir because it describes other things, i.e., types of controlled substances. Accordingly, this
reference, which masks a potential host of substances the government alludes to but does not
88
name, and which a jury could insinuate were even more dangerous or illicit than the substances
listed, must therefore be struck from the Indictment.
In addition, unlike in Mostafa where the defendant had some idea of who the others
known and unknown were and where the elsewhere locales might be, because the case
involved particular regions of the world and known entities, the allegations in this case revolve
around transactions that took place between individuals on the Silk Road website, which had as its
hallmark, according to the government, the ability to preserve anonymity and to hide any details
concerning location or identity of users across the world. See Indictment at 1 (describing Silk
Road as an underground website . . . designed to enable users across the world to buy and sell
illegal drugs and other illicit goods and services anonymously).
Without any specific parameters in the Indictment which create limits, the charges, as a
result of phrases such as others known and unknown and elsewhere and under the particular
circumstances of this case and the unique nature of the Silk Road website, have thus been
expanded to include anyone and everyone, in every location in the entire world. Therefore, this
language must be struck as surplusage to avoid depriving [Mr. Ulbricht] of his constitutional
right to be accused of a felony offense only on the basis of a grand jury indictment. Pope, 189
F.Supp., at 25.
89
Conclusion
Accordingly, for all the reasons set forth above, it is respectfully requested that the Court
grant Mr. Ulbrichts pre-trial motions to suppress the fruits of the unlawful searches and seizures,
and any evidence or other information derived therefrom, for discovery, for a bill of particulars,
and to strike irrelevant and prejudicial surplusage from the Indictment, in their entirety.
Dated: 1 August 2014
New York, New York
Respectfully submitted,
/S/ Joshua L. Dratel
JOSHUA L. DRATEL
JOSHUA L. DRATEL, P.C.
29 Broadway, Suite 1412
New York, New York 10006
(212) 732-0707
Attorneys for Defendant Ross Ulbricht
Of Counsel
Joshua L. Dratel
Lindsay A. Lewis
90

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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